Neutral Citation Number: [2012] UKUT 198(AAC) Appeal No: T/2012/06

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF MILES DORRINGTON, DEPUTY TRAFFIC COMMISSIONER for the SOUTH EASTERN and METROPOLITAN TRAFFIC AREA, DATED 18 FEBRUARY 2012

 

Before:

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

Patricia Steel, Member of the Upper Tribunal.

John Robinson, Member of the Upper Tribunal.

 

 

Appellant:

GOODMAN HICHENS PLC

 

 

Attendance:

For the Appellants: Mr G.N. Nickalls, Director.

 

Appeal heard at: Victory House, London

Date of hearing: 31 May 2012

Date of decision: 18 June 2012

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be allowed. The order for the disqualification of Mr Nickalls, Mr Tomlin, Mr Gardner, Mr Higgins and Mr Mackie will be set aside and the question of disqualification of the above named directors will be remitted for fresh consideration at public inquiry by a different Traffic Commissioner.

 

The order for revocation will stand, it not being challenged.

 

 

Subject matter:

Reliance on the most recently notified correspondence address may not be in the interests of justice where the Traffic Commissioner has good reason to believe that such service will not be effective, and alternative means of effective communication are readily available.

 

Cases referred to:

Solent Travel Ltd (34/2000)

 

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Deputy Traffic Commissioner for the South Eastern and Metropolitan Traffic Area made on 18 February 2012 when he revoked the operator’s restricted operator’s licence under Section 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 and disqualified all of the company’s directors from holding or obtaining any type of operator’s licence in any traffic area for a period of 12 months. The revocation is not challenged, but the disqualifications are.

 

2)     The factual background to this appeal appears from the documents, the transcript and the Deputy Traffic Commissioner’s decision and is as follows:

(i)     The Appellant company is the holder of a restricted goods vehicle operator’s licence authorising seven vehicles and no trailers. Mr Nickalls, Mr Tomlin, Mr Gardner, Mr Higgins and Mr Mackie are the company’s registered directors.

(ii)    The licence had been granted to Goodman Hichens PLC in December 2004. The Traffic Commissioner had, at that time, been advised that that the business would trade as P & J Services and a correspondence address of 251 London Road, Ewell, Epsom was given. The nominated operating centre was at 27 Himley Road, Tooting.

(iii)  In September 2011 Traffic Examiner Browne and Vehicle Examiner Labbadia investigated an allegation that the operator was not using its authorised operating centre, but was using an unauthorised place at the rear of 2, The Crescent, Belmont. A Mr Jeeves told the VOSA Examiners that he had bought the business formerly known as P & J Services from Goodman Hichens some two years before and that he now traded as P & J Demolition Services. Mr Jeeves said that he was the sole owner and director of this business and he explained that none of the five Goodman Hichens directors had anything to do with his business. Mr Jeeves admitted that the Traffic Commissioner’s Office had not been advised of the sale of the business, no new operators licence had been sought or obtained and no permission had been given to use the new operating centre.

(iv)  The Traffic Examiner also found numerous serious drivers hours and data recording transgressions and a completely inadequate recording system. Mr Jeeves had failed to download his vehicles’ tachograph units and ensure that digital tachograph cards were used and downloaded. He had failed to ensure that daily rest was taken and daily-driving limits adhered to. He had failed to take action to reprimand and rectify the driver infringements, including the unauthorised removal of a tachograph card during the working day. He had failed to keep record sheets and printouts or secure the return of such documents, and he had allowed the use of his vehicle with no goods test certificate in force for a period in excess of 18 months.

(v)   A maintenance investigation was carried out on 22 September 2011. A report dated 7 November 2011 from was submitted to the Traffic Commissioner’s Office. The Vehicle Examiner listed numerous shortcomings:

·       No safety inspection sheets are kept as vehicles are only repaired as and when a defect is noticed.

·       There was no forward planning system in operation.

·       There was no driver’s defect reporting system in operation.

·       There was no written maintenance contract with the repair contractor.

·       There was no wheel security/monitoring system in operation.

(vi)  The Traffic Commissioner’s Office requested a company search from Companies House in relation to Goodman Hichens PLC. The registered office of Goodman Hichens was disclosed as 1 Regent Street, London.

(vii) Needless to say, the Traffic Commissioner decided to call Goodman Hichens to public inquiry. In 2009 a licence checklist, apparently signed by Mr Nickalls, a director of Goodman Hichens, had been sent to the Traffic Commissioner’s Office listing the specified vehicles, and giving 27 Himley Road as the address for correspondence. Accordingly, a call-up letter was sent to 27 Himley Road indicating that the public inquiry had been fixed for 23 January 2011.

(viii)         No-one from Goodman Hichens attended at the public inquiry – and Mr Jeeves did not attend either. The Deputy Traffic Commissioner confirmed that 27 Himley Road was the last known correspondence address for Goodman Hichens, and he then referred to a letter that he had received that morning from NA Commercial Solicitors.

(ix)  In this letter, Mr Newman, solicitor, explained to the Deputy Traffic Commissioner that he (Mr Newman) acted for P & J Services Ltd. According to his instructions, Goodman Hichens had purchased the business of P & J Services approximately 8 years ago. Goodman Hichens applied for an operator’s licence, which was granted, and the transport operation ran from 27 Himley Road. However, approximately 4 years ago, Goodman Hichens decided to close down its business trading as P & J Services and P & J Services Ltd agreed to purchase the vehicles from Goodman Hichens and also take on the operating centre at Himley Road. The lease of the operating centre came to an end in the summer of 2010 but Mr Jeeves received the call-up letter as a result of a postal re-direct. Consequently, unless Goodman Hichens had been notified by other means, they would not have had notice of the public inquiry. Mr Newman stated that he had advised P & J Services that they did not hold an operator’s licence and must not operate goods vehicles with a plated weight in excess of 3,500 kgs. He then added:

“For the record, P & J Services Ltd has no connection with Goodman Hichens plc, other than as stated above. In particular there are no common directors or shareholders. Although I am not instructed by Goodman Hichens plc and have no authority to speak on their behalf, it seems to me that it may be appropriate for the Traffic Commissioner to adjourn this public inquiry in order that the call in letter and other documents can be served on the operator at their registered office”

(x)   The Deputy Traffic Commissioner noted that Goodman Hichens would appear not to have had notice of the public inquiry but then said:

“My understanding, and correct me if I am wrong, Madam Clerk, of the 1995 Goods Vehicles (Licensing of Operators) Regulations is that we only have to send by first class post to the last known correspondence address.”

(xi)  Since the last known correspondence address was 27 Himley Road, the Deputy Traffic Commissioner decided that the duty to notify an operator of a public inquiry had been discharged. He discounted the letter from Mr Newman on the grounds that he had no authority to speak for Goodman Hichens plc - which, he found, had had proper notice of the public inquiry. He found no reason to adjourn.

(xii) At the conclusion of the public inquiry, the Deputy traffic Commissioner gave an oral decision, which he followed up later with a written decision, dated 18 February 2012. In the written decision, the Deputy Traffic Commissioner said that: “I determined that it was in the interests of justice to proceed with the case in the absence of the operator or any representative from the operator.” The evidence of the VOSA Examiners was, of course, unchallenged and, after revoking the licence he addressed the issue of disqualification, stating that: “ … road safety had been compromised and … there is no place in the operator licensing system for directors who allow an operator to become as non-compliant as this operator”.

 

3)     At the hearing of this appeal, the Appellants were represented by Mr Nickalls, one of the directors of Goodman Hichens. He submitted a statement signed by all directors, for which we were grateful.  The first point made was that the Deputy Traffic Commissioner had the address of the operator’s registered office and he knew perfectly well that the letter sent to 27 Himley Road had not reached the operator, despite the fact that it was, technically, the operator’s last known correspondence address. Second, the information in Mr Newman’s letter was confirmed in the statements of both VOSA Examiners, which made it plain that neither Goodman Hichens nor the directors had any association with Mr Jeeves, his business, or his address. Third, the directors of Goodman Hichens fully accepted that they were in the wrong insofar as they had failed to notify the Traffic Commissioner of the sale of the vehicles and business in 2007 and that, consequently, they had no difficulty in accepting that the operator’s licence had to be revoked. Attached to the statement was a copy of the invoice selling the specified vehicles to P & J Services on 27 September 2007.

 

4)     The tribunal asked Mr Nickalls how it was that the Licence Checklist, which listed the same specified vehicles as were shown on the invoice, came to be signed by him on 24 November 2009. Mr Nickalls said that this was not his signature – it had been forged. Upon examination of the signature, and comparison with other signatures we have from Mr Nickalls, it appeared to us that the signature dated 24 November 2009 was not that of Mr Nickalls. Moreover, since the checklist had been sent to 27 Himley Road in 2009, the occupier of that address would have received it at that time, and not Goodman Hichens.

 

5)     We have regard to the decision of the Transport Tribunal in Solent Travel Ltd (34/2000), where the tribunal said:

 

5. We have to give effect to paragraph 19(1) of the Public Service Vehicles (Operator Licences) Regulations 1995 which provides that:- “A notice required or authorised to be given to a person (other than a traffic commissioner) under the 1981 Act and these Regulations may be effected by - (b) sending it to him by post at his proper address …”  Subject to the second ground of appeal, as to the adequacy of the notice given, there can be no doubt that the Traffic Commissioner was entitled to proceed on the basis that the appropriate notice had been given.  The difficulty with reaching any other conclusion is that the effect of preventing a Traffic Commissioner from taking action unless and until he has actual proof that the relevant notice has come to the attention of the person or body concerned would be to make it almost impossible to take disciplinary action against those operators who were determined to avoid having notices from the Traffic Area Office brought to their attention, or who had ceased trading.  Since such operators are quite likely to be those where disciplinary action is both appropriate and necessary we can well understand why Parliament has set out the position in the words quoted without going on to require that the Traffic Commissioner must be satisfied that the notice had come to the attention of the person to whom it was addressed.  It follows that, in our judgment, the first ground of appeal must fail.

 

6. We would not want these views to be taken as any form of encouragement to Traffic Area Offices to dispense with the ‘belt and braces’ approach under which call-up letters are sent both by Recorded Delivery and by First Class post.  On the contrary we strongly encourage this practice and urge that it is extended to any letters in which there is a threat to revoke a licence or to disqualify an individual.  Without expressing any concluded view about the effect of the Human Rights Act we can see that there might be an argument to the effect that nothing less by way of an endeavour to give notice of the time and place of the proceedings would be proportionate to the potential loss of livelihood which might result from the threatened procedure.

 

6)     Paragraph 6(1) of Schedule 4 to the Goods Vehicles (Licensing of Operators) Regulations 1995 provides for similar arrangements to those referred to in Paragraph 19(1) of the Public Service Vehicles (Operator Licences) Regulations 1995:

 

6(1) A notice required or authorised to be sent to a person under this Schedule may be effected by:

(a) …

(b) sending it to him by post to an address which is his proper address; or

(c) …

 

Paragraph 6(5) provides clarification of “proper address” to which the notice “may” be sent:

6(5) Where a person has in the licence-holder’s application notified the Traffic Commissioner of an address or, subsequently, notified a new address under regulation 25 at which documents may be given to him for the purposes of correspondence, that address shall also be his proper address for service …

 

7)     The tribunal considers that, on any view, the failure by Goodman Hichens to notify the Traffic Commissioner of the sale of the P & J Services business, and the sale of the specified vehicles, was extremely serious. Goodman Hichens compounded this failure by not surrendering their operator’s licence in 2007. The consequence of this appears to be that P & J Services carried on operating in an entirely non-compliant and dangerous fashion, whilst cloaked with the legitimacy of an operator’s licence to which it was not entitled. Whenever the vehicles being used in this way passed an Examiner or a VOSA number plate recognition device, it would appear to be legitimately operating under a valid operator’s licence and may, thereby, avoid further investigation. Had Mr Jeeves been obliged to seek an operator’s licence in his own name, he would have had to demonstrate fitness and adequate financial resources, his operation would have been monitored, and he would have been unable to hide behind the respectability afforded by the unlawful continuation of the Goodman Hichens operator’s licence. It seems to us that someone saw an advantage in dishonestly maintaining the existence of this licence in 2009 when the licence checklist was signed and returned - it appearing to us to have been signed fraudulently. In the light of the overall extent of the shortcomings identified by the vehicle the VOSA Examiners, the failings by the directors of Goodman Hichens could well have facilitated or contributed to extreme danger on the public roads. It is therefore perfectly possible that a Traffic Commissioner, after due inquiry, may conclude that the culpability arising in this case justifies a period of disqualification. This might, indeed, be an important message to the industry.

 

8)     Nevertheless, the fact remains that the directors have not yet had a real and genuine opportunity to put their case to a Traffic Commissioner. We are of the view that paragraph 6(1) uses the word “may” for a reason, it is not exhaustive and it does not remove the obligation on the Traffic Commissioner to strive for fairness in the exercise of his judicial functions. To paraphrase the tribunal in Solent Travel, we can see that there might be an argument to the effect that, where possible, nothing less than a genuine and real endeavour to give effective notice of the time and place of the proceedings is likely to be appropriate and proportionate when there is a potential loss of livelihood and reputation arising from a disqualification.

 

9)     Had the Deputy Traffic Commissioner not known from the reports of the VOSA Examiners and the letter from Mr Newman that the address to which the call-up letter had been sent had been taken over by Mr Jeeves some years before and, consequently, that Goodman Hichens were most unlikely to have received it, then his reliance on the last known address could not be faulted. He was under no obligation to have positive proof of service. But we think he stretched reality too far when he asserted that it was in the interests of justice to proceed with the case in the absence of the operator or any representative from the operator when he had positive evidence that service had not been, and in all probability could not have been, effective. Tempting though it was to lay the serious failings of P & J Services at the door of Goodman Hichens and, more specifically the directors, we do not think that this was in the interests of justice when the directors had not had a real and genuine opportunity to address the question of their actual culpability and make representations to the Deputy Traffic Commissioner about the effect of any such disqualification on their business.

 

10) It would not have been difficult to send a call-up letter to Goodman Hichens actual address. It is a public limited company. It is also to be noted that the Deputy Traffic Commissioner not only knew sufficient of the facts to make it abundantly clear that actual notice of the public inquiry had not been given, he also had full details of operator’s registered office, and their current trading address would not have been difficult to discover. Use of such alternative addresses would, we find, be consistent with the ‘belt and braces’ approach advocated by the Transport Tribunal. It may add to the administrative burden, and we do not suggest that Traffic Commissioners must go beyond the requirements of paragraph 6(5) in every case, but where it is clear that the last notified correspondence address might well not achieve successful notification, especially where the issues are grave and of significant consequence, and where an alternative straight-forward means of notification exists, we think that the interests of justice militate towards a more realistic and fair approach.

 

11) Accordingly, we allow the appeal and set aside that part of the Deputy Traffic Commissioner’s decision that relates to the question of disqualification of the operator’s directors. We remit the question of disqualification of the said directors for fresh consideration at public inquiry by a different Traffic Commissioner. Correspondence from Goodman Hichens reveals that their current postal address is Springwell Lane, Rickmansworth, Hertfordshire WD3 8UX. The Traffic Commissioner already has details of their Registered Office.

 

 

 

Judge Mark Hinchliffe, DCP

18 June 2012