Neutral Citation Number: [2012] UKUT 159 (AAC)

Appeal No.  T/2012/05

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Miles Dorrington, DEPUTY TRAFFIC COMMISSIONER for the

Eastern Traffic Area Dated 8 January 2012

 

 

 

Before:

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

David Yeomans, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

 

 

Appellant:

A N D HAULAGE Ltd.

 

 

 

 

Attendances:

For the Appellant: Jeremy Fear, Solicitor

 

 

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

Date of hearing: 30 April 2012

Date of decision: 10 May 2012

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED and that the matter be remitted for rehearing.

 

 

 

 

 

 

 

 

 

SUBJECT MATTER:-   Good Repute, Disqualifcation

 

 

CASES REFERRED TO:-  None

 

 

 

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 and to disqualify the sole director of the Appellant company, Nigel Roberts, from holding or obtaining an operator’s licence, in any capacity, for a period of 12 months.  The Deputy Traffic Commissioner directed that the revocation and the disqualification should come into effect at 2359 on 9 February 2012.

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 the use of 6 vehicles and 6 trailers.  Nigel Roberts is the sole director of the Appellant company.

(ii)                 On 22 April 2010, following a stop check when the driver of one of the Appellant’s vehicles was found in possession of a false record, VOSA commenced an investigation as to whether or not the Appellant’s drivers were complying with drivers’ hours regulations.  The result of that investigation, in general terms, was that on many occasions, drivers had not taken sufficient rest and, on many occasions, they had falsified tachograph records.

(iii)                There was evidence of offences between March 2010 and November 2010.  At first VOSA dealt with these matters by issuing fixed penalty notices, then some drivers were made the subject of prohibitions and eventually a number were prosecuted.  It appeared to VOSA that tachograph charts were not being examined and that on occasions it was impossible for a driver to complete the work which he had been given within permitted hours.

(iv)                On 28 March 2011 a maintenance investigation was carried out.  This arose because one of the Appellant’s vehicles had been issued with an ‘S’ marked prohibition.  Amongst the things which this investigation revealed was that between October 2010 and January 2011 a total of 27 maintenance related prohibitions were issued to the Appellant’s vehicles.  Of these two were ‘S’ marked, 10 more were immediate and 15 were delayed. They were issued for a variety of different defects.

(v)                 The ‘S’ marked prohibition which gave rise to this investigation was issued on 1 November 2010, which was within the 12 period for safety inspections of the Appellant’s trailers.  However the defects, (mal-adjusted brakes and defective brake components), were of long standing and should have been detected.  The 12 week inspection period was clearly too long.

(vi)                Other matters of concern came to light as a result of this investigation.  Many trailer PMI sheets did not identify the trailer which had been inspected and the annual MOT performance was significantly below the national average.

(vii)              On 8 November 2011 the Appellant was called to a Public Inquiry, which was to be held on 8 December 2011.  The letter contained a warning that failure to attend may result in the Traffic Commissioner determining the case in the absence of the operator.  The letter set out the evidence which the Traffic Commissioner intended to consider in considerable detail.  The roadworthiness prohibitions and the convictions were set out in detail.  Reports of the two investigations were included with the letter.  The letter warned that an adjournment was unlikely to be granted unless there were exceptional circumstances.  Disqualification of Mr Roberts was expressly put in issue.

(viii)             On 15 November 2011, Jeremy Fear, who was initially instructed to represent the Appellant, wrote to inform the Traffic Commissioner that a Mr Jamieson, the Appellant’s Transport Manager, had died suddenly on 5 November 2011.  Mr Fear requested an adjournment because the Appellant was “making strenuous efforts to find another Transport manager”.  That application was refused but the Traffic Commissioner did not close the door on the application being renewed with greater detail to support it.

(ix)                Following the refusal of this application to adjourn the Appellant withdrew Mr Fear’s instructions and, instead, chose to be represented by Mr Richard Tinkler.  On 28 November 2011 Mr Tinkler wrote to the Traffic Commissioner making a further application to adjourn the Public Inquiry.  He explained that following the death of Mr Jamieson some of Mr Jamieson’s relatives had disposed of documents including tachograph records, PMI sheets and other documents relating to the Appellant’s business.  He added that Counsel instructed to represent the Appellant was not available on 8 December 2011.  On the same day the Office of the Traffic Commissioner, (“OTC”) replied that having regard to concerns about road safety the Traffic Commissioner remained to be satisfied that an adjournment was in the interests of justice.

(x)                 On 30 November 2011 Mr Tinkler replied to the OTC dealing with a number of queries which had been raised in the letter of 28 November 2011.  He said that his firm had been formerly instructed on 25 November and that Counsel had been instructed on the same day.  In addition he said that he had engaged an independent consultant who would not be able to prepare a report for 4 weeks.  The letter ended with another request for an adjournment.  This too was refused on the same day.

(xi)                On 1 December 2011 Mr Tinkler once more asked the Traffic Commissioner to reconsider the refusal to adjourn the Public Inquiry.  Amongst other things he said: “It would appear therefore that the Traffic Commissioner’s Office is refusing such an application to adjourn currently, with the consequence that our client will be unrepresented, ill prepared and in all probability will lose his repute and his operator’s licence on 8 December 2011.  Such a consequence cannot be in the interests of justice”.  The OTC replied on the same day that the Traffic Commissioner had determined that it was in the interests of justice to proceed with the hearing.

(xii)               On 2 December Mr Tinkler wrote to request the Traffic Commissioner to reconsider the decision to refuse an adjournment “prior to us making an urgent application to the High Court”.  On 6 December 2011 the Appellant made an application to the High Court for Judicial Review of the decision to refuse an adjournment.  That application was refused for a number of reasons, one of which envisaged the possibility of a further application at the start of the Public Inquiry.

(xiii)             When the Public Inquiry convened on 8 December 2011 Mr Tinkler and Mr Barber were present on behalf of the Appellant but Mr Roberts was not.  The Deputy Traffic Commissioner asked whether there was a reason for his absence.  Mr Tinkler replied: “Mr Roberts feels compromised.  He has asked me to represent him because he is not prepared, sir, he says for this Public Inquiry”.  Mr Tinkler then took the Deputy Traffic Commissioner through the chronology of the applications to adjourn.  He went on to refer to the late service of a bundle of papers which he received on 5 December 2011 in order to support a renewed application to adjourn, though he accepted that these documents did not affect the issue of financial standing, which would proceed in any event.  The Deputy Traffic Commissioner took the view, relying on his experience, that given the nature of the case there had, in fact, been sufficient time for adequate preparation.  He asked whether Mr Roberts was in the country and was assured by Mr Tinkler that he was.

(xiv)             The Deputy Traffic Commissioner retired to consider the request for an adjournment and then gave an oral decision.  He took the view that the 9 days available to Mr Tinkler provided an adequate period for preparing the case.  He expressed concern about road safety, pointing out that there was no evidence before him to rebut the falsification of tachographs, the drivers’ hours breaches or the prohibitions.  He said: “ I notice also the fact that the Director has not attended today for no good reason, it seems to me, and that the Director has chosen not to submit any evidence in any form, neither a statement, an affidavit or even a letter to explain his non-attendance or his submissions”.  He went on to conclude that, at that stage, it appeared that the Appellant was not of appropriate financial standing.  He refused the application for an adjournment and directed that the Public Inquiry was to proceed.

(xv)              The Deputy Traffic Commissioner then went on to direct that, with effect from 2359 on 11 December 2011, the licence was to be suspended for 6 months or until such time as appropriate financial standing could be established.  He made this direction on the ground that there had been a material change in circumstances since the licence was granted.  He refused to stay the suspension because of his concerns that road safety would be compromised were the Appellant to be allowed to continue to operate.  The Deputy Traffic Commissioner clearly had in mind that the Operator Compliance score in relation to maintenance was a ‘red 10’ while the score in relation to tachographs and drivers’ hours was a ‘red 8’.  Finally the Deputy Traffic Commissioner allowed a period of grace of 28 days for the appointment of a new Transport Manager.

(xvi)             The Public Inquiry then proceeded with the witnesses from VOSA being called to speak to the statements which were disclosed with the call-up letter.  Mr Tinkler made it clear at the outset that he was not in a position to cross examine witnesses.  Mr Barber then gave evidence to explain the steps which he had taken since his appointment  he explained that because of his other commitments it would take him four weeks to produce his report.

(xvii)            The Deputy Traffic Commissioner gave a written decision dated 8 January 2012.  It would appear that the Appellant was able to provide sufficient evidence of financial standing within the time allowed by the Deputy Traffic Commissioner.  The decision therefore concentrates on the prohibitions, the convictions, the drivers’ hours and tachograph breaches and the impact of these matters on good repute.  Suffice it to say, given the conclusion we have reached, that the Deputy Traffic Commissioner found all these matters proved and that he revoked the licence for loss of good repute and also, in the exercise of his discretion, having regards to the other matters.  In addition he disqualified Mr Roberts.

(xviii)          A Notice of Appeal was filed, by Mr Roberts, on behalf of the Appellant on 17 January 2012.  The main point made by Mr Roberts, for the purposes of this decision, was that he was advised by Mr Tinkler that the hearing on 8 December 2011 was a preliminary hearing and that he would get the chance to speak later.

(xix)             At the end of February 2012 the Appellant terminated its instructions to Mr Tinkler and re-engaged Mr Fear, who indicated that he was also representing Mr Roberts personally.  Mr Fear submitted amended grounds of appeal the second ground being in these terms: “the sole director Nigel Roberts was advised by the solicitor representing him not to attend and give evidence had he done so, the inquiry would have proceeded in a different way and may have had a different outcome”.

(xx)               Mr Fear provided us with a skeleton argument, in advance of the hearing, for which we are grateful.  In it he asserted that he had spoken to Mr Tinkler who had confirmed that he did advise Mr Roberts not to attend the Public Inquiry.

(xxi)             At the start of the hearing we sought clarification as to whether or not there had been any waiver of the privilege between Mr Tinkler and Mr Roberts.  It was not clear to us that any thought had been given to this point, but having allowed time for Mr Fear to give advice to Mr Roberts we were provided with a document signed by Mr Roberts in which privilege was expressly waived in relation to the conversation about attending the Public Inquiry.

(xxii)            Having been provided with the waiver we then invited Mr Fear to set out the conversation with Mr Tinkler in writing and in as much detail as he could recollect.  We invited Mr Roberts to do the same in relation to the conversation in which he was advised not to attend the Public Inquiry.  They were kept in separate rooms until the statements had been completed and they were informed that they were not to contact Mr Tinkler.  Finally the Tribunal Staff made contact with Mr Tinkler inviting him to set out his side of the story, again in writing.  He was told to have no contact with Mr Fear or Mr Roberts.

(xxiii)           Mr Fear and Mr Roberts gave very brief statements.  Mr Fear said that he was told by Mr Tinkler that the latter had advised Mr Roberts not to attend the Public Inquiry because it would be adjourned.  Mr Roberts confirmed that this was the advice that he had been given.  Mr Tinkler provided a statement giving much more detail.  He said that he had discussed the risks of attendance and non-attendance at the Public Inquiry with Mr Roberts and that he had said that in his view the risk of attending outweighed the risks of not attending because Mr Roberts was not equipped to answer the questions raised by the call-up letter.  Mr Tinkler went on to add that in his view there was no requirement that Mr Roberts should attend the Public Inquiry.  Mr Tinkler produced a letter signed by Mr Roberts in which he set out the limited instructions which Mr Tinkler was given following that discussion.

3.           Mr Fear made two points in support of his submission that the appeal should be allowed and the matter remitted for rehearing.  The first was that there was now clear evidence that Mr Roberts had been advised not to attend the Public Inquiry.  The second was that the Deputy Traffic Commissioner should have suspended the licence pending the attendance of Mr Roberts.  In relation to the first of these points Mr Fear submitted that it was not surprising that Mr Roberts had not attended, given that he had received advice from a lawyer who is a specialist in this field.  He went on to submit that, had the Deputy Traffic Commissioner known of those circumstances, it would have been wrong to disqualify Mr Roberts.

4.           We want to make it clear at the outset that, on the basis of the material before him, the Deputy Traffic Commissioner’s approach to the application for an adjournment and his reasons for refusing that application cannot be faulted.  The number and nature of the prohibitions and the number and nature of the convictions fully justified his understandable concern about road safety and his anxiety to proceed with the Public Inquiry.

5.           The problem which troubles us is this.  We do not suggest that anything which Mr Tinkler said, by way of explanation for the absence of Mr Roberts, was actually untrue.  However it seems to be perfectly clear, in the light of what we have now been told, that he did not tell the Deputy Traffic Commissioner the whole truth.  We are left with the very clear impression that, as a result of Mr Tinkler being ‘economical with the truth’, the Deputy Traffic Commissioner was mislead about the reason for the absence of Mr Roberts.  Instead of making it clear that Mr Roberts was absent because he had been advised to stay away Mr Tinkler allowed the Deputy Traffic Commissioner to proceed on the basis that Mr Roberts had made his own independent decision not to attend.

6.           It is impossible to say whether the full truth would have made any difference to the result of the application to adjourn.  Whether or not it would have done so would have depended on the view which the Deputy Traffic Commissioner took at the time, with the benefit of having Mr Tinkler before him and with the benefit of any answers which Mr Tinkler gave to further questions, (assuming, of course, that he was satisfied that privilege had been waived).  In other words he would have had the benefit of material which cannot be available to us and as to which we ought not to speculate.  But there is another aspect of this case, namely the question of disqualification.  There, it seems to us, the picture is more clear-cut.  In our view if the Deputy Traffic Commissioner had known that Mr Roberts had remained away on the basis of legal advice it would have been unwise, in this particular situation, to proceed to disqualify Mr Roberts without giving him an opportunity to be heard.  To that extent we are satisfied that the Deputy Traffic Commissioner was led into error because he was not told the whole story.

7.           Mr Fear submitted that the Deputy Traffic Commissioner had employed an alternative to a simple adjournment in relation to financial standing in this very case.  He submitted that suspension of the licence, pending the attendance of Mr Roberts would have achieved two desirable aims.  First, it would have encouraged the attendance of Mr Roberts and second, it would have protected the public in the meantime because potentially dangerous vehicles would have been kept off the road.  It is certainly true that in the case of financial standing the suspension of the licence spurred the Appellant into action and, at the same time, offered a measure of protection for the public.

8.           We have not come across this use of the power to suspend in any previous appeal.  We express no final view as to whether or not it is an appropriate use of the power to suspend because the matter was not fully argued.  We can see that it is a powerful spur to rapid action on the part of an Appellant, who may, up to that point, have appeared to be dragging his or her feet.  We can also see how it can provide a measure of protection to the public in cases where it appears, on paper, that there are real concerns as to road safety.  However we would urge caution, until the matter has been resolved by a decision reached after full argument.  In our view if this power is to be used it should be used sparingly and on occasions on which it is essential in order to achieve a just result.  Questions such as these should be considered first: (i) Is it necessary to compel the Appellant to do something?  (ii) Is the threat to road safety so serious that suspension pending action on the part of the Appellant is essential? (iii)  Is suspension to prompt the Appellant to do something proportionate to the situation before the Traffic Commissioner?

9.           We have considered whether this is a case in which it is appropriate for us to make our own assessment of the available evidence in order to avoid the delay and expense of remitting this case for re-hearing.  We are driven to the conclusion that it neither possible nor appropriate to follow that course in the present case for the simple reason that the evidence only presents one side of this story.

10.        The usual test, which the Tribunal applies when considering appeals from Traffic Commissioners, is to ask whether the decision was ‘plainly wrong’.  In our view this case provides a rare exception to that rule because the ‘plainly wrong’ test is not appropriate where it appears that a Traffic Commissioner has not been given a complete explanation and, as a result, has based his decision on a false premise.  In that situation it seems to us that it is more appropriate to consider whether, as a result, there is a risk of unfairness to the Appellant.  We have underlined the word ‘rare’ because we wish to stress that we are not changing the ‘plainly wrong’ test, nor are we seeking to dilute it in any way.  If any other Appellant seeks to persuade the Tribunal to use a ‘risk of unfairness’ test they will need to show that the facts of that appeal very closely replicate what happened in this appeal.  Our view is that this is likely to be a rare occurrence.

11.        We have already indicated that had the Deputy Traffic Commissioner known that the failure of Mr Roberts to attend the Public Inquiry was as a result of legal advice he would have been unwise to disqualify Mr Roberts without giving him an opportunity to be heard. It follows, in our view, that there is a risk of unfairness to Mr Roberts because he was deprived of the opportunity to be heard.  In relation to the Appellant company the position is nowhere near so clearcut.  However if the question of whether or not it is appropriate to disqualify Mr Roberts, and, if so, for how long, is to be considered then it seems to us that whoever undertakes this task will be in a better position to make that assessment if all the evidence is put before them and can, if appropriate, be challenged.  Whether, as a result, the position of the Appellant company and Mr Roberts is improved or gets worse remains to be seen.

12.        For these reasons the appeal is allowed and the matter is remitted for rehearing.  While we make no criticism whatsoever of the Deputy Traffic Commissioner’s conduct of the Public Inquiry we feel that it would be appropriate, to avoid any suggestion that the matter has been pre-judged by his decision, if the next Public Inquiry is conducted by a different Traffic Commissioner.

 

 

 

 

 

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

Principal Judge for Traffic Commissioner Appeals.

12 May 2012