Neutral Citation Number: [2012] UKUT 37 (AAC)

Appeal No.  T/2011/65

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF Tim Hayden

 DEPUTY TRAFFIC COMMISSIONER for the West Midland

 TRAFFIC AREA dated 14 October 2011

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

 

 

Appellant:

 

DEEP TRANSPORT LIMITED

 

 

Attendances:

For the Appellant: Simon Newman, Solicitor of NA Commercial Solicitors appeared on behalf of the Appellant

 

 

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

Date of hearing: 9 January 2012

Date of decision: 30 January 2012

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be ALLOWED to the extent that the matter be remitted for rehearing before a different Traffic Commissioner.

 

 

 

SUBJECT MATTER: Good repute; breach of undertakings; delay in publishing decision; revocation.

 

CASES REFERRED TO: Priority Freight Limited (2009/225); Thomas Muir (Haulage) Limited v The Secretary of State for the Environment, Transport and the Regions (1998) ScotCS 13; Bryan Haulage; Mark Anthony Browne t/a Brownes Transport (1996/H46); George Gollop & Direct Movement Services Limited (9/2002); Bryan Haulage (No.2) (2002/217)

 

 

REASONS FOR DECISION

 

1.               This was an appeal from the decision of the Deputy Traffic Commissioner for the West Midland Traffic Area made 14 October 2011 when he revoked the Appellant’s standard national operator’s licence under s.26 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”). 

 

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

 

(i)              By order of the Transport Tribunal made on 30 January 2009, the standard international operator’s licence of Sukhpal Singh trading as Deep Transport was revoked and Mr Singh was disqualified from holding or obtaining an operator’s licence for a period of twelve months.  In making that order, the Tribunal upheld the findings of the Deputy Traffic Commissioner made following a public inquiry held in February and July 2008.  The Deputy Traffic Commissioner’s decision was dated 8 September 2008.  The reasons for the revocation and disqualification included a breach of the undertaking in relation to maintenance (including a significant number of prohibitions); a breach of the undertaking in relation to drivers hours and tachographs (including substantial missing mileage, drivers hours offences (including offences committed by Mr Singh), incorrect recording of starting and finishing locations, failure to use mode switches and an inability by the drivers to correctly complete centrefields); the failure to retain copies of drivers licences and the retention of copies of drivers licences that did not correspond to any tachograph records; the asserted loan of vehicles to a company without an operator’s licence which, in any event, could not be traced; the use of an unspecified operatoring centre; and the lack of a transport manager for long periods of time.  When giving evidence, Mr Singh attributed many of the failings identified in the investigation to the operation of the business by his wife Kiranjit Kaur, whilst he was in India.  An application by Anytime Transport Limited for an operator’s licence was considered at the public inquiry and was refused.  Mr Singh was the sole director of that company.  A subsequent application by Mr Singh trading as Midland Transport was refused on 25 February 2010, as the application was made within the period of his disqualification. A further application made by Midland Transport Limited (the sole director being Mr Singh) was refused on 24 June 2010.

 

(ii)             On 13 October 2008, the Appellant made an application for a standard national operator’s licence authorising 3 vehicles and 6 trailers.  The sole director of the company was Kiranjit Kaur, Mr Singh’s wife.  The operating centre was situated at GWS Industrial Estate, Leabrook Road, Wednesbury; the correspondence address was 79 West Park Road, Smethwick (the couple’s home address).  According to the Traffic Area records, the application was granted with effect from 25 February 2009.  Two vehicles were in possession until 12 April 2011, when a third was added.  No trailers have ever been specified.

 

(iii)            On 12 June 2009, a public inquiry was held by the Deputy Traffic Commissioner to consider the Appellant’s apparent connection with the revoked licence of Mr Singh trading as Deep Transport.  Good repute and financial standing were in issue.  The public inquiry did not conclude that day but was adjourned so as to enable the Deputy Traffic Commissioner to determine how to proceed with the case.  By a further call up letter dated 18 May 2010, the Appellant was notified that the Deputy Traffic Commissioner had decided to deal with the matter as a disciplinary case.  The apparent connection with Mr Singh and with the new application by Midland Transport Limited were to be considered along with issues of maintenance, including prohibitions and financial standing.  The outcome of the public inquiry held on 22 June 2010, was confirmed by letter which recorded that the Appellant was given a formal warning as to its future conduct as an operator; it was required to appoint a new transport manager within 14 days; evidence of financial standing was to be submitted within 3 weeks and undertakings were recorded concerning six weekly safety inspections, the introduction of a nil defect daily driver reporting system and three monthly rolling road brake tests for all authorised vehicles and trailers, with records to be kept for at least two years.  Unfortunately, the Tribunal has not been provided with a copy of the Deputy Traffic Commissioner’s oral or written findings at the conclusion of the hearing.

 

(iv)           On 19 July 2010, Alan Caffrey became the Appellant’s nominated transport manager.  The TM1(G) form notified the Deputy Traffic Commissioner that Mr Caffrey was contracted to work for the Appellant for 24 hours per week.

 

(v)             On 20 September 2010, the Appellant made an application to increase its authorisation to 7 vehicles and 13 trailers.  In response to a request for additional information, including the registration numbers of the additional vehicles to be specified on the licence, Mrs Kaur replied : “I want to let you know I do not have any additional vehicles at this time ...”.  At that stage, (according to the registered keeper details in the papers) three vehicles were registered to Deep Transport Limited (DX53 OMU; DX53 ONR; DX53 ONH;) five to Deep Transport and Mrs Kaur together (DX53 ONC; YN53 BKV; PN04 XCS; EU04 HBH; YJ05 YDV) and one to Deep Transport and Mr Singh together (KX51 ETV).

 

(vi)           By an email dated 30 September 2010, Mr Caffrey applied for an interim authorisation to cover the increased application.  By a letter dated 10 October 2010, the Appellant was informed that no additional authorisation whether on an interim or full basis would be granted until a maintenance inspection had taken place. 

 

(vii)          On 12 October 2010, an unannounced maintenance inspection took place at the Appellant’s operating centre.  VE Male was assisted by VE Jones.  The registration details of the vehicles specified on the licence at that stage were: DX53 ONC and YN53 BKV.  Upon arrival, it was evident that a driver was preparing the un-liveried tractor unit KX51 ETV (registered to Deep Transport/Mr Singh) for departure.  This was attached to a trailer marked “Deep 14”.  No licence disc was displayed in the vehicle.  The driver confirmed that he was driving on behalf of the Appellant.  Delayed prohibitions were issued to the tractor unit for a badly worn tyre which was clearly visible and for a tachograph with a broken seal and damage to the armoured tachograph cable which had been repaired with insulating tape.  A delayed prohibition was issued to the trailer for two brake system defects.  The prohibitions issued were later the subject of PG9C variation and refusal notices when the vehicle and trailer were presented for clearance. 

 

(viii)         Upon the arrival of Mrs Kaur and Mr Caffrey at the operating centre and following a private conversation that they had with the driver, Mrs Kaur told VE Male that the vehicle KX51 ETV did not belong to the company but to a driving instructor and that the driver had taken the wrong vehicle by mistake.  When it was pointed out to her that the vehicle was registered to her home address (79 West Park Road), she stated that the driving instructor was in fact her husband.  As the vehicle contained a current driver defect reporting book which had been completed for daily use, VE Male doubted whether he was being told the truth.  In addition, the number of trailers present at the operating centre seemed large for a fleet of two vehicles in possession.

 

(ix)           YN53 BKV (a specified vehicle) was being steam cleaned when VE Male arrived.  It was coupled to a trailer at the request of VE Male and inspected.  Both vehicle and trailer were found to be roadworthy.  DX53 OMU (registered to Deep Transport Limited and not specified on the Appellant’s licence) was present in the yard and had a trailer attached to it marked “Deep 8”.  It was displaying a licence disc issued to BVH Limited.  Upon the dashboard of the cab was a delivery note to Travis Perkins in Essex dated the previous day, 11 October 2010 and was made out to Deep Transport Limited with a dedicated haulier  number; it was signed by the driver “S. Singh”.  A licence check revealed that BVH Limited had gone into receivership on 25 August 2010.  Mrs Kaur was asked about the vehicle and she denied that it had anything to do with the Appellant company, stating that it was “just parked there sometimes”.  When Mrs Kaur was informed that the vehicle was registered to the company at her home address and that the delivery note could be seen on the dashboard, she stated that the vehicle was used by BVH Limited for sub-contract work from the Appellant.  She could not provide any paperwork to support her claim; neither could she give any contact details of anyone at BVH, apart from the name “Ken”.  VE Male was concerned that the Appellant was operating unauthorised vehicles and proceeded to interview Ms Kaur under a PACE caution.  She confirmed that she was the owner of DX53 OMU and stated that BVH Limited rented the vehicle from the company.  She was asked who paid S. Singh’s wages and she replied “no comment”.  She stated that S Singh worked for her; that the mechanics present at the operating centre were employed by her but stated that the repairs and maintenance of DX56 OMU were undertaken and paid for by BVH Limited, although her mechanics would undertake emergency repairs.  In answer to questions about “Ken’s” surname, whether she invoiced Ken for the repairs, to whom the drivers of the vehicle handed their driver defect sheets and tachograph charts to, she replied “no comment”.  When Mr Caffrey was later interviewed about this matter, he said that he believed that BVH Limited was known to Mrs Kaur and that she leased vehicles to the company.  He said that vehicle DX53 OMU may have been driven by Mrs Kaur’s husband and it was highly possible that they had given the job undertaken on 11 October 2010 to BVH Limited.  He did not know who the contact was at BVH Limited. 

 

(x)             VE Male returned to the operating centre on 18 October to complete his examination of PMI sheets and maintenance systems.  It came to his attention that whilst the rolling road brake tests were being conducted (he did this by attending the premises of the outside contractor responsible for undertaking the tests), the records were not being kept by the Appellant in accordance with the undertaking given at the previous public inquiry. 

 

(xi)           On 2 November 2010, VE Male made an unannounced visit to the operating centre in the company of TE Lees who had been assigned to investigate possible unauthorised use of vehicles and drivers’ hours offences.  He examined DX53 ONH (not specified) and a semi trailer and issued an advisory notice for an inoperative nearside side repeater to the vehicle and in respect of the trailer, he issued an immediate prohibition for a broken quick release valve between axles 2 and 3 and a delayed prohibition for the valve leaking when the service brake was applied.  VE Male found that the maintenance facilities were satisfactory and that inspection intervals were being adhered to.  The records and systems were in order, with the exception of the rolling road brake testing records. 

 

(xii)          As a result of his findings, he issued a PG13F and a PG13G to the Appellant requesting a written explanation for the number of prohibitions that had been issued for tyre and brake defects and also requested an explanation as to why the rolling road brake test records were not available for inspection.  In a letter dated 3 November 2010, Mr Caffrey stated that he would ensure that rolling road brake test records would be kept in future and that the company was considering using a contractor for tyre inspection.  He claimed that the trailer inspected on 2 November 2010 had been inspected on 25 October 2010 and that no defects had been found.  He did not offer any explanation for the number and type of prohibitions issued.

 

(xiii)         In his report, VE Male stated that the Vehicle Encounter Report between 1 February 2006 and 31 January 2011 recorded 27 vehicle examiner inspections.  One immediate and six delayed prohibitions had been issued which equated to 3.7% and 22.22% prohibition rates respectively.  He also noted that the initial pass rate of the annual test was 66.67% compared to the national average of 71.18% and a final pass rate of 83.33% compared to the national average of 82.25%.  VE Male concluded that the total number of prohibitions (2 immediate and 10 delayed since 26 August 2009) indicated that the Appellant was unable to keep its vehicles in a road-worthy condition and that as a result he could not recommend an increase in the number of vehicles authorised.  He was also concerned that the Appellant was operating in excess of its authorisation.

 

(xiv)        TE Lees prepared a report dated 21 February 2011 in which he noted that when he attended the operating centre on 2 November 2010, there was a wall planner displayed showing six trailers: Deep 3; Deep 4; Deep 7; Deep 8; Deep 10 and Deep 14.  This number reflected the full authorisation of trailers for the Appellant.  However, on 12 October 2010, VE Male had examined a trailer (C060305) whilst it was attached to YN53 BKV and the same trailer was later checked whilst attached to DX53 ONH.  This trailer did not appear on the wall planner.  Further in the photographs taken of the yard by VE Male on 12 October 2010, a further trailer “Deep 19” was captured.  When Mr Caffrey was interviewed under caution and asked how many trailers the company operated, he replied “I believe we only own six”.  TE Lees considered that these matters indicated that the Appellant was operating trailers in excess of its authorisation

 

(xv)          As for vehicles, TE Lees noted the report of VE Male of 12 October 2010 concerning vehicle DX53 OMU displaying the licence disc of BVH Limited which was attached to trailer “Deep 8”, the delivery note and Mrs Kaur’s answers concerning ownership and use of the vehicle.  TE Lees noted that VE Male was prevented from examining the interior of the vehicle as no one within the company made the keys available to him.  He also relied upon the circumstances in which KX51 ETV came to be inspected on 12 October 2010, that this vehicle had been presented for its annual test by the Appellant company on 21 October 2010 and that the following vehicles had been encountered on the road side by VOSA and driven by drivers who claimed they were employed by the Appellant: KX51 ETV (5 June 2009 at Junction 14 of M1 and 26 August 2009 in Dagenham); DX53 ONH (at operating centre), YJ05 YDV (3 November 2010 at Chelmsford)  YJ05 YDW on 19 January 2011 at Crick.  These vehicles had not been specified on the Appellant’s licence at the relevant time.  Finally, when Mr Caffrey was asked how many vehicles were operated by the company he replied “we actually operate three”, although only two were specified.  However, when requested to produce tachograph charts, charts were only produced for the two vehicles specified on the licence.  TE Lees concluded that it appeared from all of the evidence that the Appellant was operating vehicles in excess of the number authorised and had used a licence disc of a company that had gone into liquidation. 

 

(xvi)        TE Lees analysed tachographs for the period 1 August to 31 September 2010.  A total of 1,824kms were unaccounted for, representing 5.8% of the kilometres operated in the two vehicles for which he had charts.  When asked about the missing kilometres, Mr Caffrey, who informed TE Lees that he was working 20 hours a week with the company, stated that he was aware of the missing kilometres.  On three occasions, Amrik Singh had driven to his collection point without a tachograph chart in order to save his driving hours.  In other instances, drivers had failed to surrender their tachograph charts to the company.  The drivers were supposed to leave the charts in lockers in the yard and collect new charts but this system had recently changed with the introduction of a book to track the issue and surrender of charts.  He was recording all kilometres on a spreadsheet and warning drivers when missing kilometres were identified. 

 

(xvii)       Mr Caffrey told TE Lees that the majority of the drivers were employed on a casual basis with only Buta Singh and Rajinder Singh being employed full time.  TE Lees found that a large number of the records failed to correctly account for duty other than driving, the mode switches being left on rest.  Mr Caffrey admitted that no driver’s training had been given on mode switch use.  One example was that of Buta Singh on 8 September 2010 when his record showed a minimum daily rest period of nine hours, yet he had failed to record time spent on his daily vehicle check.  Under caution, he stated that he always checked his vehicle at the beginning of the day but that on occasion, he may not have done so in order to save time.  Further, drivers were failing to record time spent travelling in a company vehicle to and from locations where their driving had either started or ended other than at the operator’s centre.  There was also an instance of a driver using another driver’s name on one record sheet.  Mr Caffrey confirmed that Amrik Singh had undertaken the driving that had been attributed to Avtar Singh on that day.

 

(xviii)      Whilst on the face of the tachograph charts, drivers’ appeared to be complying with the rules on daily rests and breaks, it was probable that some offences were being hidden by the failure to keep proper records.  In total 65 charts were analysed with 14 drivers identified; 9 of those drivers had committed a total of 13 offences including 3 daily rest offences and 8 offences of either failing to use a tachograph chart or failing to record the beginning or end of their journeys.  When interviewed, Avtar Singh stated that he had attended a tachograph course as part of his driver CPC but other drivers stated that they had not received any drivers hours training.  Mr Caffrey confirmed that there was little that the company had done in relation to training as it was assumed that the drivers knew what to do when they were taken on.  They had however had two half day meetings with the drivers since the issues had been identified.  Mr Caffrey stated that all the tachographs were now being checked by TMS Logistics and that the reports were being shown to the drivers.  They would also be provided with mode switch training and they had been instructed to record their daily walk round checks.  Mr Caffrey had also issued memos to the drivers instructing them that duty starts at the operating centre and that journeys to collection points must be recorded.  He stated that all of the bad drivers were no longer used by the company. 

 

(xix)        TE Lees was concerned about whether Mr Caffrey and Mr Hotchkiss, the Traffic Coordinator could effectively communicate with the drivers, the majority of whom were Punjabi speakers with a poor command of English.  Mr Caffrey stated that he was able to communicate effectively and that when he spoke to the drivers over the telephone, they understood the points he was trying to make.  In relation to the control of drivers, Mr Caffrey stated that Mrs Kaur scheduled the work of the vehicles with Mr Hotchkiss managing backloads (the Tribunal notes at this stage that for a three vehicle authorisation with only two vehicles in possession, the necessity for two people to be involved in scheduling is somewhat surprising).  In any event, Mr Caffrey concluded his interview by stating “Its still early days for me here; I’m trying to turn things around.  The language barrier is a problem with the drivers and the owner to a degree.  I believe she has a determination to operate professionally; but just lacks the wherewithal”.

 

(xx)          It was TE Lees’ view that Mr Caffrey’s responsibilities involved managing drivers hours only after the fact and that work may have been scheduled in such a way that it did not ensure that the drivers could comply with the drivers hours requirements.  Finally, he noted that of the 14 names that appeared on the tachograph charts, 6 could not be identified and no driving licences were held in respect of those names.  TE Lees concluded that on the basis of all of the information, he did not consider that the Appellant was complying with its undertaking to ensure compliance with the drivers’ hours and tachograph rules. 

 

(xxi)        On 2 November 2010, the same day as the second unannounced inspection, Midland Transport Limited was granted a standard national operator’s licence authorising 3 vehicles and 6 trailers subject to a number of undertakings including six monthly audits of maintenance systems by the Road Haulage Association (“RHA”) and monthly independent analysis of tachograph charts. 

 

(xxii)       By letters dated 6 April 2011, the Appellant company, Mr Caffrey and Midland Transport Limited were called to a public inquiry to be held on 2 June 2011.  The Appellant’s variation application was to be considered along with issues of breach of undertakings, the prohibitions, good repute, financial standing and professional competence. The Deputy Traffic Commissioner was also to consider possible connections with Midland Transport Limited. 

 

(xxiii)      Mr Caffrey chose to make written representations to the Deputy Traffic Commissioner prior to the hearing.  He stated that he had joined the company in July 2011 on a casual basis working a few hours a week (in view of the above, he must be mistaken as to the year which should read “2010”).  He described the Appellant at that stage as “still running poorly in terms of operating vehicles within the law, drivers hours regulations were not being observed, maintenance schedules were nonexistent and MOT procedures were not being adhered to.  These and many other issues were a concern to the operator, Mrs Kaur”.  He agreed to work 20 hours a week in September 2010 in an effort to bring the operation up to speed.  He first of all developed a service schedule for vehicles and trailers which was quickly followed by ensuring that all the vehicles and trailers were roadworthy and legal.  He then had a thousand tachograph charts to analyse and he devised a mileage continuity chart to track missing mileage.  This was difficult because there was no record as to who drove what vehicle on which day.  This continuity chart was available when TE Lees visited.  Mr Caffrey also organised a meeting with the drivers to explain their responsibilities as HGV drivers.  He also devised a planner for inspections, MOT dates, bi-annual tachograph calibrations, road tax dates and brake tests.  He was required to develop a filing system and introduce a driver defect reporting system.  He considered that there had been a significant reduction in missing mileage and an increase in driver awareness.  The hardcore of the drivers who were responsible for the vast number of infringements were no longer used or were forced to leave.  The overall standard of the operation had improved greatly, including communication levels.  He had previously enquired about the validity of KX51 ETV and had been informed that it was a training vehicle operated by Mr Singh.  He was also led to believe that vehicles were operating under a licence held by BHV Limited.  It was not until late October 2010 that his actions had started to have an impact on the operation of the vehicles and he felt aggrieved that his name was being linked with a “poor repute situation”.  He felt he had ended up in the wrong place at the wrong time.  He did not explain why his original TM1(G) dated 19 July 2010 had notified the Deputy Traffic Commissioner that he would be working for 24 hours per week with the Appellant when in fact he started working on a “casual basis working a few hours a week from July 2011” (sic). 

 

(xxiv)     On 9 May 2011, at Walsall Magistrates Court, the Appellant was fined £500 and ordered to pay costs of £517 in respect of an offence of failing to produce tachograph charts.  This conviction arose out of the investigation of TE Lees.  As a result, a further call up letter was issued referring to the conviction.

 

(xxv)       On 2 June 2011, the Appellant, Mr Caffrey and Midland Transport Limited were represented by Mr Newman.  A file of documentation was put before the Deputy Traffic Commissioner which contained: two RHA audits for Midland Transport Limited and the Appellant company dated 25 May 2011; a letter from RHA confirming the provision of in-house drivers’ hours training to take place on 25 May 2011; the RHA training documentation; a certificate in the name of Mr Singh dated 4 November 2010 entitled “Managing your Operator Licence”; a document prepared by Mr Caffrey dated May 2011 entitled “Instructions to driving staff on vehicle safety”; a memo dated 17 January 2011 and signed by 3 of the Appellant’s drivers acknowledging that they understood the simplified version of the rules on drivers’ hours that they had been provided with; Deep’s Daily walk round procedure; a guide to drivers hours and tachographs; an undated memo to Amrik Singh from Mr Caffrey in relation to the handing in of the correct tachograph charts; the CV and qualification certificates of Leighton Witcombe, a fitter employed by the Appellant; a schedule of chart returns by drivers; 2 records for distributing and returning tachograph charts in the names of Amarjit and Bhupinder Singh, both unsigned but dated 10 May 2011; an example of a notice informing a driver that he has not returned tachograph charts; a letter from TMS (Analysis) Limited addressed to Mr Caffrey at his home address dated 17 May 2011 confirming that they had been undertaking periodic tachograph analysis for the Appellant since August 2010 with the provision of reports of offences found; a letter from Newstead Insurance Brokers dated 1 June 2011 confirming that they insure the Appellant’s “mixed operation of haulage and HGV tuition and that KX51 ETV was insured as a training vehicle”; a flyer advertising “Deep Transport Training”; booking confirmations for LGV tests for Mr Singh, Mr Rehan and Mohan Singh; a list of maintenance equipment; photographs of the offices including noticeboards; terms and conditions of employment of staff and drivers of the Appellant and Midland Transport Limited including contracts for Mr Caffrey showing that he is contracted to work for 20 hours per week for each company; the driving licences for 3 drivers of the Appellant and for 4 drivers of Midland Transport Limited; PMI records; rolling road brake testing records and vehicle defect reports. 

 

(xxvi)     VE Male spoke to his report and confirmed that when he examined KX51 ETV, it was taxed and in use.  He stated that on 12 October 2011, he had arrived at the operating centre at 11a.m. The number of trailers did concern him because there appeared to be an excess over the authorisation.  There were quite a lot of trailers “lying around” at a time of day when a company’s vehicles would normally be busy and out on the road.  He accepted that there were other businesses operating from the site.  There were however, at least 5 vehicles present in the yard with only one of the vehicles in possession present.  It followed that if the second authorised vehicle was on the road with a trailer, then that would be the sixth as per the authorisation.  He agreed that the registered keeper documents for KX51 ETV confirmed what Mrs Kaur had said about the vehicle belonging to a driving instructor.  However, in relation to whether the driver could have been mistaken as to which vehicle to take from the yard, KX51 ETV was white, whereas YN53 BKV was blue.  He had flicked through the driver defect report book which was in the cab and it had been completed that morning.  He produced an enhanced photograph of the delivery note in the vehicle’s cab which showed that it had been issued by Hanson and was for aggregate or stone. As for vehicle DX53 OMU (displaying the disc of BVH Limited) he was not allowed access to that cab having been told that the keys were not at the operating centre.  As for the rolling road brake test records, there were only one or two of them present in the vehicle files.  He agreed that the prohibition history was not the worst he had seen but it was above average and it was the nature of the defects which gave cause for concern.  He confirmed that he did not have concerns about the maintenance records, forward planning or workshop facilities. 

 

(xxvii)     TE Lees then spoke to his report and it was indicated by Mr Newman that there was no factual dispute with its contents.  TE Lees informed the Deputy Traffic Commissioner that the types of journeys that were not being recorded at the beginning of a day’s journey were to remote locations such as Mesham in Derbyshire where the Hanson Group had a base.  Whilst TE Lees could not recall being shown any specific paperwork in relation to missing mileage, he did recall being shown something.  He was also shown some evidence of independent tachograph analysis but did not examine the system in detail.  He said that whilst KX51 ETV and DX53 ONH were encountered at the operating centre, vehicle YJ05 YDV was encountered on a roadside check on 3 November 2010.  In relation to the tachograph chart that had been submitted with the incorrect name, he thought that it was possible that it was in fact the same driver using two different names.  As for the absence of some driving licences, he would expect the operator to have copies of all driving licences, even if the drivers were casual drivers so that the operator had evidence of the driver’s licence entitlement.  When the absence of driving licences was brought to the attention of Mr Caffrey, he said that some of the drivers had left and that one appeared to be using two names.  Of note, of the two full time drivers employed by the Appellant (Buta and Rajinder Singh), in the two month period analysed, there were only eight charts in the name of Buta Singh and two charts for Rajinder Singh.

 

(xxviii)   Kiranjit Kaur then gave evidence.  She informed the Deputy Traffic Commissioner that she ran the Appellant company from the operating centre and from her home.  She stated that vehicle KX51 ETV was a white vehicle used by her husband for LGV training.  On 12 October 2010 Kulvinder Singh, a driver who was new to the company was instructed by Mrs Kaur to take the key for the white vehicle from the garage.  She meant vehicle YN53 BKV which was also white.  He took the wrong key. The reason why the key to KX51 ETV was in the garage was because it had just had an inspection.  As for DX53 OMU, that vehicle had previously been hired for couple of months by the Appellant to BVH Limited, a company with whom she had a mutual sub-contracting arrangement.  She had a record of payment for the hire (which was not produced).  She then went onto say that in fact the Appellant owed BVH Limited money for deliveries they had undertaken for her.  She could not remember when BVH Limited had undertaken any sub-contracting work for her.  Be that as it may, she said BVH Limited had returned the vehicle to her a few weeks before 12 October 2010 stating that they were not going to use it anymore.  She admitted that on 12 October 2010, the Appellant company was the operator of the vehicle and that the vehicle had been used by the Appellant on 11 October 2010 because the company had work for the vehicle.  Satnam Singh, not her husband, had been the driver on that day.  She had intended to ask Mr Caffrey to specify the vehicle on her margin but then work was not very busy so she changed her mind.  She gave the answers she did to VE Male because she was “a bit nervous” and worried about her children because she had been unable to arrange suitable child care at such short notice.  She was also worried about work.  The reason why she had six vehicles registered to the Appellant company and two in her name was because she was buying extra vehicles as her husband had applied for an operator’s licence and the vehicles were “a good deal”.  She was also thinking about increasing her own authorisation.  She first of all stated that she had her own company for trading in commercial vehicles but she later denied that this was the case.  And when asked questions by the Deputy Traffic Commissioner, she first of all stated that she owned some vehicles separately from the company and that there was nothing of significance in that but then stated that the company owned all of the vehicles including KX51 ETV.  She retracted this statement later in her evidence, stating that KX51 ETV belonged to her husband. 

 

(xxix)     Three vehicles were leased to Midland Transport Limited, but she could not say which ones; neither had she collected any payments for the hire of those vehicles, although she had a written hire agreement with Midland Transport Limited (which was not produced).  She apologised for giving “wrong information” to VE Male about DX53 ONC.  She had answered no comment in her interview because she did not want to give any more incorrect information to the vehicle examiner. 

 

(xxx)       She told the Deputy Traffic Commissioner that she had never operated more than three vehicles or more than six trailers.  The reason for the abundance of trailers in her yard was that another company used it to park its trailers.  As for the trailers marked “Deep”, Deep 19 was going to replace Deep 3 because it had been damaged in an accident.  Deep 14 had already been sold to ATN in Wolverhampton at the time of VE Male’s visit.  She did not produce any documentation to confirm the position with either trailer.  She had in fact only operated four trailers and when asked whether anyone else operated the trailers, she replied “not really”.  When questioned further, she stated that the Appellant was the sole user of the trailers.  She could not remember whether any other operator other than BVH Limited had operated any of the Appellant’s vehicles but then replied in the negative. Mrs Kaur was asked about the roadside encounter with the unspecified vehicle YJ05 YDV on 3 November 2010 at Chelmsford.  She admitted that she had used the vehicle to make a delivery.  She apologised.  She was not asked about the roadside encounter with YJ05 YDW on 19 January 2011.

 

(xxxi)     Mrs Kaur told the Deputy Traffic Commissioner that Mr Caffrey had worked with the company since June 2010 and was now full time.  He kept an eye on the drivers’ hours position and undertook other checks.  He was very good and he had her full authority as she trusted him.  They met regularly and they went through the tachograph reports together.  She was aware that there was a problem with missing mileage before the VOSA investigation.  She stated that before Mr Caffrey was employed, her previous Transport Manager had checked tachographs and sent them off to TMS.  When it was pointed out to her that the letter from TMS confirmed their involvement with the Appellant from August 2010, Mrs Kaur stated that the tachograph charts had been sent to another company before that (no documentary evidence was produced to support that statement). 

 

 

(xxxii)    Sukhpal Singh told the Deputy Traffic Commissioner that KX51 ETV had been used for HGV training but on 11 October 2010, he had dropped the vehicle off to the operating centre for an inspection and had bought a new tyre for it the day before.  Having been granted an operator’s licence in November 2010, Midland Transport Limited had not commenced operating until May 2011.  The reason for the delay was that he had been hoping to purchase a concrete plant but the finance had fallen through.  His wife had provided him with three vehicles four weeks before the public inquiry: DX53 ONR, DX53 ONH and YJ05 YDB (no registered keeper details were produced for this latter vehicle).  Midland Transport Limited employed three drivers, although one of them, Davinder Singh was solely employed as a LGV driving instructor.  Mr Singh was not paying for the hire of the vehicles from the Appellant.  The company shared all facilities with the Appellant.  He was aware of the Appellant’s problems with tachographs and Midland Transport Limited shared the same systems as the Appellant.  He was buying three new vehicles with digital tachographs so as to avoid any of the problems of the past.  These were to be leased from Mercedes with the agreements including maintenance.  The company undertook the same kind of work as the Appellant.  He denied that he was the driver of DX53 ONC; Satnam Singh drove on that day.  He said that KX51 ETV had now been replaced and he was using PN04 XCS for training which he hired from the Appellant company.  He agreed that he had assisted his wife in the operation of the Appellant company before the grant of a licence to Midland Transport Limited but that he was “not really running the company”. He provided LGV training through Deep Training School Limited and he was the sole director.

 

(xxxiii)   Alan Caffrey informed the Deputy Traffic Commissioner that he had started working with the Appellant in September 2010 working fifteen to twenty hours a week.  He had been “linked” to the company in June but his status had not been official.  He had seen an advert in the local job centre for a part time Transport Manager and the advert stated that the successful candidate could work from home.  He was an approved driving instructor and had been the general manager of Breezemount Transport Limited which had operated a fleet of 35 vehicles and 12 panel vans.  The company had been the sole transport provider to MFI  and also undertook work for IKEA.  Mr Caffrey started working for 4 hours a week for the Appellant in June 2010.  He was given “a pile” of tachographs and there was no evidence that any previous analysis of charts had taken place.  There was no driver defect reporting or a forward planner for maintenance.  He started to implement a more robust tachograph system in June and distributed numbered tachograph charts.  He chased missing tachographs and analysed them prior to sending them off to TMS.  Drivers were sent letters if missing mileage was found and TMS reports were signed off by the drivers.  All the unreliable drivers had now left the company.  He was confident that the latest analysis of charts would be good. 

 

(xxxiv)  Having now implemented a drivers’ defect reporting system, on 4 May 2011, he commenced a system of spot checks on drivers to ensure that they were checking their vehicles correctly.  He in fact commenced full time employment with both companies in May 2011, undertaking 20 hours a week for each of them.  The companies worked closely together and forward planners and the like were shared. 

 

(xxxv)    He went through the documents he had prepared which were contained in the Appellant’s evidence file.  The RHA had delivered drivers’ hours training on 25 May 2011 and had undertaken the audits.  There were no concerns about the systems in place and the recommendations contained in the audits were already being implemented.  He thought that he needed a further three months to implement health and safety and other recommendations.  He accepted that there had not been any driver training between June 2010 and January 2011 apart from two Saturday morning briefings.  He had been led to believe by Mrs Kaur that the drivers had already been trained, although there was no evidence that training had taken place.  Mode switch training took place soon after Mr Caffrey was interviewed by TE Lees.  He said that there had been a problem with a high turn-around of drivers but the position had improved. Mr Caffrey had expressed views to Mrs Kaur as to when training should take place and he could not explain why the drivers training did not take place until 25 May 2011.  The company did not train the drivers when he had wanted the training to take place.  He accepted that he could have done a “stronger job” in the chasing of missing tachograph charts, the problem was that he would identify the drivers and then they were no longer with the company. As for the missing mileage, he had assumed that the problem was missing charts rather than drivers not recording parts of their journeys.  When checking the charts, he did not check start and finish traces. 

 

(xxxvi)  He had looked at all of the driving licences of the drivers used and had taken copies of them.  When TE Lees pointed out that there were missing copies of driving licences, Mr Caffrey did not produce the missing copies because TE Lees did not ask for them.  He did discuss the missing copies with Mrs Kaur who told him that she had some of them at home. 

 

(xxxvii) As for the use of unauthorised vehicles, Mr Caffrey stated that as far as he was concerned, KX51 ETV had nothing to do with the Appellant company being Mr Singh’s training vehicle.  He had been told that DX53 ONH had been used on 11 October 2010 when this issue was raised.  As far as he was aware, the company operated DX53 ONC and YN53 BKV.  When he said to TE Lees “we actually operate three vehicles” he was referring to the authorisation, not the number of vehicles in possession.  He was only aware that DX53 OMU had been used as a result of the VOSA visit.  He had not been aware of the use of YJ05 YDW to deliver a load to Chelmsford and he said that if the operator chose to run a vehicle outside the authorisation, then he would not be aware of it unless he had been told.  He was not aware of any arrangements between the Appellant and BVH Limited and had not heard of the company until the day of the VOSA visit. 

 

(xxxviii)          The public inquiry was then adjourned to 13 June 2011.  In the interim, TE Lees prepared an additional report dated 8 June 2011.  This informed the Deputy Traffic Commissioner that he had analysed tachograph charts for the period 1 February to 30 April 2011, the charts having been produced by Mr Caffrey on 2 June 2011.  He found that there were 109 charts for five vehicles: DX53 ONC; DX53 OMY; DX53 ONH; EU04 HBH and YN53 BKV.  The majority of the records were completed to a high standard and the drivers were now using the mode switches correctly and they were recording the commencement of their duties.  12 drivers were identified.  The drivers hours and recording offences identified by TE Lees were as follows: one offence of driving in excess of 10 hours (Sandeep Singh); one of insufficient rest ,being 7 hours 16 minutes (Ranjit Singh); four offences of failing to keep a record (Buta and Ranjit Singh).  One offence of failing to keep a record concerned Buta Singh who recorded that on 17 March 2011, his duty ended at junction 12 of the M40.  His record for 18 March 2011 showed him commencing duty at the operating centre.  His recorded rest period between the two charts was only 8 hours and 58 minutes.  On another chart, the name Kehan Singh (the only chart bearing that name) was entered onto the centrefield using different pens by different hands.  There were 231 kilometres missing from the charts in total.  As for the VOSA vehicle encounter with vehicle YJ05 YDW on 18 January 2011, at Crick, Northamptonshire, the vehicle was being driven, laden, by Sandeep Singh (one of the Appellant’s drivers).  It was stopped again on 24 May 2011 at the M1 services at Trowell, when it was being driven by Wieslav Zarek.  At that stage, it was specified on the licence of Midland Transport Limited.  It had never been specified on the Appellant’s licence.  This second encounter would put the use of the vehicle outside the 30 day period of grace allowed to operators for specifying vehicles. 

 

(xxxix)  TE Lees spoke to his report during the course of the adjourned hearing.  In cross examination he stated that in respect of the tachograph chart with the centrefield completed in two different hands, he stated that whilst he was not a handwriting expert, it was obvious that the name “Kehan Singh” was in different handwriting.  He agreed that he had now been given an explanation for some of the missing mileage, that is, that two tachograph charts were missing but a copy of a third tachograph chart had now been produced.  As for the roadside encounter with YJ05 YDW on 24 May 2011, the reason why the use of the vehicle was attributed to the Appellant rather than to Midland Transport Limited upon whose licence the vehicle was specified, was because either the driver had said that he was working for the Appellant or the relevant VOSA officer had seen paperwork confirming use of the vehicle by the Appellant.  He accepted that there had been a “vast improvement” in the tachograph charts although one of the areas where attention was needed was the requirement of all casual drivers to provide “declarations” of their other work to ensure that the Appellant was scheduling their work in compliance with the rules.  This was not being undertaken by the company.

 

(xl)           Mrs Kaur was then recalled by Mr Newman.  She accepted that she had owned YJ05 YDW having bought it on a separate occasion to YJ05 YDV in 2010.  On 19 January 2011, the vehicle was being operated by the Appellant company but on 24 May 2011, it was being operated by Midland Transport Limited.  It was not pointed out to Mrs Kaur that when giving evidence on 2 June 2011, Mr Singh had not referred to this vehicle when giving a list of those vehicles operated by Midland Transport Limited.  As for the charts analysed by TE Lees, these had not been independently analysed by TMS because the call up letter required the production of 3 months of tachographs.  The last analysis undertaken by TMS was February 2011.  The tachographs were however, checked in-house by Mr Caffrey.

 

(xli)          Mr Caffrey confirmed that he had decided not to send off the tachograph charts for March and April 2011 to TMS as he was required to produce them at the public inquiry.  He checked them himself but only for missing mileage.  It did not occur to him that there was a problem with the records of Buta Singh in relation to his end of duty at the M40 services on 17 March 2011 and the beginning of his duty at the operating centre on 18 March 2011.  He attributed his failure to spot this offence to inattention.  Neither did he notice that some vehicles were being utilised by the Appellant company that were not authorised on the operator’s licence despite the vehicles appearing in the tachograph charts.  He concluded his evidence by stating that the main obstruction to him undertaking his work was the language barrier.

 

(xlii)         Mr Newman made closing submissions.  He emphasised the provision of drivers training in November 2010, although he conceded that this was a requirement of their CPC course in any event and the session was entitled “customer services”.  He also pointed to the RHA training on 25 May 2011 together with the various instructions that had been given to the drivers by Mr Caffrey.  This had resulted in a vast improvement in the position in relation to drivers’ hours and tachograph infringements.  He submitted that credit should be given to Mrs Kaur for having accepted in her evidence that she had misled VE Male about the use of DX53 OMU by BVH Limited on 11 October 2010 and that she had then made no comment to further questions so as to avoid giving further misleading answers.  She was frightened and had panicked.  She had no reason to use the licence disc of another company because of the unused margin of one on her licence.  Mr Newman asked the Deputy Traffic Commissioner to note that neither Mr Caffrey or Mr Singh had provided misleading information to the VOSA officers.  He pointed to the procedures and systems that had been implemented by Mr Caffrey and the RHA audits which were positive in terms of compliance.  Insofar as recommendations had been made, action was being taken. The breach of the undertaking in relation to rolling road brake tests was restricted to a failure to keep records as opposed to a failure to undertake the tests themselves. 

 

(xliii)       In relation to Mr Caffrey, Mr Newman submitted that there were no specific allegations made against him as the Transport Manager of either the Appellant or Midland Transport Limited.  He was aware of his responsibilities as a Transport Manager and he should be given credit and praise for what he had achieved with the Appellant company.

 

(xliv)       As for Midland Transport Limited, there were no specific allegations against that company and no adverse findings had been made by the VOSA officers.  As a result, there was no evidence to support a finding of loss of repute against Midland Transport Limited.

 

(xlv)        Turning to the Appellant company, whilst the sole director had admitted misleading VE Male during the investigation, she had set the record straight at the public inquiry.  The investigation had highlighted problems with record keeping and drivers’ hours and prohibitions and there was a conviction.  To weigh in the balance against those negative matters were the employment of a full time Transport Manager; the satisfactory maintenance procedures and facilities; the improved procedures in respect of drivers hours and tachographs, although some further infringements had been identified; the drivers had been trained and it was intended that such training would continue; there was a determination on the part of those responsible for the company to operate lawfully and competently.  When considering the question posed in Priority Freight Limited (2009/225), the evidence demonstrated that the Appellant would very likely operate compliantly in the future.  He reminded the Deputy Traffic Commissioner of the case of Thomas Muir (Haulage) Limited v The Secretary of State for the Environment, Transport and the Regions (1998) ScotCS 13 and that the powers under s.26 of the Act were not to be exercised so as to impose a punishment on the operator.  Mr Newman submitted that the scales had not been tipped so far as to justify a loss of repute as at the date of the public inquiry, although it might be felt that good repute had been tarnished.  Mr Newman submitted that either curtailment or suspension of the licence, unless they were limited in scope, would be disproportionate as such action would result in the loss of contracts and would increase financial difficulties.  A warning was all that was required.  As for revocation, Mrs Kaur had two children and the financial viability of the household depended upon the operation of two transport companies.  Both Mrs Kaur and Mr Singh were personally heavily in debt having borrowed capital in order to finance their operations.  The Appellant offered undertakings that RHA audits would continue; that driver training would continue on a six monthly basis; that for the following two years, an external trainer would provide the necessary training and that tachograph charts would be externally analysed. 

 

(xlvi)       At the conclusion of the hearing, the Deputy Traffic Commissioner stated that he would endeavour to publish a written decision within 28 days.

 

(xlvii)      On 14 October 2011, four months after the second day of the public inquiry, the Deputy Traffic Commissioner published his decision.  He found, as a result of the prohibitions, that the Appellant had breached its undertaking to keep vehicles fit and serviceable.  Whilst the number of prohibitions was not high, they were of particular concern because they related to such matters as brake components and axles.  He found the Appellant had breached its undertaking to observe the rules on tachographs to keep proper records; the drivers had also committed offences.  The Appellant had taken wholly inadequate steps to ensure compliance prior to the VOSA investigation evidenced by the substantial missing mileage which had resulted in a conviction.  The breach of this undertaking was serious and ongoing, as evidenced by the further offences detected by TE Lees during his analysis of the 2011 charts.  The offence committed on 17 March 2011 was of particular significance.  The Deputy Traffic Commissioner found that it had not been easy to determine the ownership and use of all vehicles utilised on both licences.  Notwithstanding the registration details, he had been told that all the vehicles were owned by the Appellant company and had been operated by the Appellant, by Midland Transport Limited and for training purposes.  There had been use of KX51 ETV  when it was not specified or displaying a licence disc.  There had been use of another operator’s licence disc in DX53 OMU whilst the vehicle was operated by the Appellant.  The Deputy Traffic Commissioner detailed the answers Mrs Kaur had given to VE Male about the ownership and use of those two vehicles and her subsequent “no comment” interview and further relied upon the refusal to provide VE Male with access to the cab of DX53 OMU.  He did not accept that the use of either vehicle was accidental and found that Mrs Kaur had made a deliberate attempt to mislead VE Male.  He also relied upon the unauthorised use of YJ05 YDV (misspelt in the decision as XJ05 YDV) on 3 November 2010 (he did not refer to the apparent unauthorised use of YJ05 YDW).  The Deputy Traffic Commissioner did not accept the reasons put forward for Mrs Kaur providing false and misleading information to VE Male and found that she was not a truthful witness.

 

(xlviii)    The Deputy Traffic Commissioner noted that had the public inquiry been solely concerned with the breach of the undertaking to keep vehicles fit and serviceable, the breach could have been dealt with by a formal warning.  The protracted failures in relation to tachographs and the provision of driver training was more serious.  In particular, the delay in providing training to the drivers until 24 May 2011 was indicative of Mrs Kaur’s attitude to her responsibility as an operator.  However, the greatest concern was her attempts to mislead VOSA officials by telling a succession of lies concerning the use of vehicles.  In looking at the issue of repute, he considered Priority Freight (supra) and asked himself the question as to whether the operator could operate lawfully in the future.  He determined that it could not.  It was clear from the evidence that the Appellant had used vehicles to carry out work without informing its Transport Manager which was “wholly irresponsible” and Mrs Kaur had been prepared to mislead VOSA officers.  The issue of trust was central to the holding of an operator’s licence and he had no confidence that Mrs Kaur would not be prepared to act in this way in the future if it suited the purposes of the company.  He found that the Appellant had lost its good repute and he revoked the licence with effect from 11.59 on 30 November 2011.

 

(xlix)       As for Mr Caffrey, the Deputy Traffic Commissioner accepted that his involvement had become more intensive over time and that the position in relation to tachographs had improved.  He accepted Mr Caffrey’s evidence that the provision of drivers’ training was out of his control and that the operator had not provided the training when Mr Caffrey had wished it to be done.  He also accepted that Mr Caffrey had no knowledge of vehicles being used by the Appellant which were not specified on the licence.  This reflected on the operator rather than Mr Caffrey and it clearly prevented him from maintaining continuous and effective supervision over a fleet of vehicles.  The Deputy Traffic Commissioner was concerned by the contents of TE Lees’  second report; Mr Caffrey failed to identify the issue with the tachograph charts dated 17 and 18 March 2011 when he should have been particularly aware of the problem having been interviewed about the problem previously.  Despite his concerns, the Deputy Traffic Commissioner found that Mr Caffrey retained his good repute but issued a formal warning to him being satisfied that Mr Caffrey’s job had been made “extremely difficult by the conduct of Deep Transport Limited.” 

 

(l)              Finally, in the absence of any evidence that Ms Singh had been involved in the operation of the Appellant company other than occasional driving duties, no action was taken against Midland Transport Limited. 

 

3.     At the hearing of this appeal, Mr Newman again represented the Appellant company.  He submitted a helpful skeleton argument for which we were grateful.  His first point was that the decision to revoke the Appellant’s licence under s.26(1(f) of the Act (breach of undertakings) was disproportionate and plainly wrong.  The undertaking in question was that relating to drivers’ hours as the Deputy Traffic Commissioner had found that the breach of the undertaking to keep vehicles fit and serviceable would have warranted a warning if it had been the sole issue at the public inquiry.  The Deputy Traffic Commissioner had accepted the findings of TE Lees as set out in his second report that tachograph charts were generally being completed to a high standard as at the date of the public inquiry and that there had been a vast improvement in the analysed records.  Mr Newman’s skeleton argument avers that “this is not a case where there was any evidence of falsification of records ... that drivers were given schedules which would, inevitably, involve them driving in excess of the permitted hours  ... that any failure in compliance had resulted from a deliberate decision to achieve a commercial advantage”.  These points were not raised by Mr Newman in his oral submissions but for the sake of completeness the Tribunal feels obliged to deal with them.  We observe that missing mileage and the failure to keep records of duty does result in the available records being false as they do not show the true position and that in all likelihood or inevitably in some cases, drivers hours’ offences were hidden by the failure to record the first or last part of the drivers duty and that the only conceivable motive for failing to record duty time (in the absence of an explanation from the Appellant and evidence that the journeys were scheduled correctly) was that the schedules set by the operator could not be complied with lawfully.  Whether that is because of incompetent scheduling or a deliberate decision to achieve a commercial advantage, the position was nevertheless a serious one.  Of course, missing mileage and failures to record duty time continued to be a feature of TE Lees’ second report, which is of particular importance when set against a background of apparent operation of no more than three vehicles.

 

4.     Mr Newman’s main point in relation to revocation under s.26(1)(f) of the Act was that the Deputy Traffic Commissioner had not undertaken any proper balancing exercise.  His decision does not explain why the earlier shortcomings in relation to drivers’  hours and records were so serious that they outweighed the more positive features of the evidence being the report of TE Lees dated 8 June 2011, the evidence of the satisfactory procedures and systems that had been put in place by Mr Caffrey, the evidence of training by the FTA in May 2011 and the driver training conducted in November 2010 in customer services.  Whilst Mr Newman was forced to accept that this latter training did not relate to drivers’ hours and that it was part of the drivers’ on-going CPC training, Mr Newman submitted that it could still be relied upon to demonstrate that the drivers were being given some training.  He was also forced to accept that Ranjit Singh had “run out of drivers’ hours” on 17 March 2011 resulting in the failure to keep a record of his duty or driving time and we observe that no explanation for that was provided to the Deputy Traffic Commissioner which might have allayed his fears that scheduling within the Appellant company was not as it ought to have been even at that stage.  We observe that good repute must also be weighed into the balance.

 

5.     Mr Newman then turned to the issue of loss of repute.  He repeated the submissions that he had made before the Deputy Traffic Commissioner in relation to Mrs Kaur giving misleading and untruthful answers to questions put to her by VE Male (see sub-paragraph (xlii) above).  We do not repeat them here.  In relation to Mr Newman’s submission that Mrs Kaur had no reason to give dishonest answers when questioned by TE Male about the use of an unauthorised vehicle because she had a margin of one on her licence, we observe that the submission assumes that the Appellant was only operating one unauthorised vehicle.  Mr Newman accepted that the excuses Mrs Kaur gave for being dishonest were “not good enough”.  He did  however go on to submit that an operator who admits to misleading VOSA officials does not automatically lose their repute.  Mr Newman referred the Tribunal to Mark Anthony Brown t/a Brownes Transport (1996 H46) & George Gollop & Direct Movement Services Limited (9/2002) and submitted that the Deputy Traffic Commissioner should have asked himself the question “would other operators who have heard of this ruse consider the perpetrator to be of good repute?” Mr Newman submitted that the proportionate answer to this question in this case is that whilst Mrs Kaur’s answers to VE Male were to be “condemned”, she had redeemed herself by volunteering the fact that she had given untruthful answers when asked about the matter at the public inquiry.  Mr Newman submitted that if a strict approach was taken and that all dishonesty admitted or proven would justify a loss of repute, then there would be no incentive for any operator to be open about their operations.  The correct approach ought to be that an operator should be encouraged to attend a public inquiry and “come clean” with the Traffic Commissioner.  Mr Newman submitted that it was less serious to mislead a VOSA officer than to mislead a Traffic Commissioner.  In any event, Mrs Kaur’s answers in relation to the operation of KE51 ETV were not misleading as her husband was in fact a driving instructor. 

 

6.     Mr Newman was concerned that the Deputy Traffic Commissioner’s finding that Mrs Kaur was an untruthful witness might have been reached based upon his assessment of her demeanour but that the time delay of four and a half months between the first day of the public inquiry (when she gave evidence) and the date that the Deputy Traffic Commissioner’s issued his decision may mean that his memory of her demeanour had faded.  He submitted that the Deputy Traffic Commissioner’s decision was based simply on the fact that Mrs Kaur had misled the Vehicle Examiner six months earlier. 

 

7.     The Tribunal took Mr Newman through the other aspects of untruthfulness: we enquired as to why VE Male was denied access to the cab of DX53 OMU when the Appellant had in fact been the operator.  For the first time, it was averred that the driver of the vehicle, at eleven o’clock in the morning had already completed his duty for the day and had gone home with the keys to the vehicle, so that he could take it out the following day.  That seemed to the Tribunal to be an unlikely explanation; we enquired as to why Mrs Kaur informed the traffic area that she had no additional vehicles to specify when asked about the registration numbers of those vehicles she intended to place on the licence if the authorisation was increased (particularly important against the background of unauthorised use in this case).  The Tribunal was told that Mrs Kaur had intended to specify only those vehicles that had digital tachographs, although she did not possess any at the time.  Again, we consider this to be an unlikely explanation; we enquired about her evidence that she had used a company to analyse tachograph charts prior to August 2010, about which there was no evidence and the fact that the statement was in direct conflict with the evidence of Mr Caffrey on the point and that the conflict was not corrected by either Mrs Kaur or Mr Newman during the course of the public inquiry.  This conflict and the absence of evidence to support Mrs Kaur’s evidence might suggest that Mrs Kaur had not only given untruthful answers to VE Male but that she may also have given untruthful answers to the Deputy Traffic Commissioner.  It is unfortunate that this issue was not explored further.

 

8.     Finally, Mr Newman submitted that whilst the Deputy Traffic Commissioner had considered the question posed in Priority Freight (supra) what he did not do was ask the question posed in Bryan Haulage (No. 2) (supra) i.e. did the Appellant deserve to be put out of business?  The answer to that question required the Deputy Traffic Commissioner to consider all the relevant circumstances, including the up to date position.  Mr Newman conceded that this case was in fact all about whether the Deputy Traffic Commissioner could trust the operator but the balancing exercise should nevertheless be undertaken. 

 

9.     There can be no doubt that this was a bad case with significant breaches of the undertaking in relation to drivers’ hours and records with continuing wrong doing highlighted in the second report of TE Lees and there was a loss of good repute.  We disagree with Mr Newman’s submission that to mislead or deceive a VOSA officer is less serious than attempting to mislead or deceive a Traffic Commissioner.  Whilst it may be that Mrs Kaur’s readiness to “come clean” before the Deputy Traffic Commissioner concerning her deceit was a matter which could be taken into account in the balancing exercise, the reality was that Mrs Kaur could not have done otherwise as her lies to VE Male were not capable of withstanding close scrutiny and had been exposed prior to the public inquiry.  There were of course, other aspects of her evidence and matters within the public inquiry papers which should have been the subject of scrutiny.  But even without those further enquiries, we have no hesitation in finding that in April 2011, when the call up letters were sent out, the Appellant and Mrs Kaur had lost their good repute.  And in answer to the question posed in Browne Transport (surpa), we are in no doubt that if other operators had heard about the conduct of Mrs Kaur and the manner in which the Appellant was being operated, they would consider both to have lost their good repute. 

 

10. It is with regret however, that we find the following irregularities with the decision of the Deputy Traffic Commissioner:

 

a)    The Deputy Traffic Commissioner failed to undertake any balancing exercise, weighing in the balance the negative and the positive features of the evidence that he heard and accepted.  Whilst this was a case in which good repute was inevitably lost prior to the public inquiry, the Deputy Traffic Commissioner should have made clear why that remained so as at the date of his decision despite the efforts of Mr Caffrey and Mrs Kaur to address the deficiencies in the operation of the Appellant company;

 

b)    Whilst it is often the case that the question posed in Priority Freight (supra) is inextricably intertwined with the question posed in Bryan Haulage (No. 2) (supra) both questions should be addressed.  We should state that we have some sympathy with the Deputy Traffic Commissioner in this respect as Mr Newman himself did not ask the Deputy Traffic Commissioner to address the Bryan Haulage question;

 

c)     It is well established that the above questions along with the balancing exercise should be addressed at the conclusion of the public inquiry.  In this case we have a decision that was published four months after the adjourned public inquiry.  Whilst we reject Mr Newman’s submission that the Deputy Traffic Commissioner’s recall of Mrs Kaur’s demeanour would in some way have been affected by such a delay, it cannot be said that the relevant questions were being asked at the correct time.  The situation of the Appellant and Mrs Kaur may have changed for the better with further improvements in their operational conduct and they were entitled to have any such improvements taken into account.  At the very least, the Appellant and Mrs Kaur should have been given an opportunity to provide up to date information.  Whether any such positive evidence would have altered the position is another matter.

 

For the above reasons, we are duty bound to allow this appeal and to remit it for a full re-hearing before a different Traffic Commissioner.  We would expect that a fresh investigation is undertaken both in relation to maintenance and drivers’ hours and records and that those unresolved matters that were before the Deputy Traffic Commissioner are investigated further. 

 

11. In the result, the appeal is allowed.

 

 

 

 

Her Honour Judge J Beech

30 January 2011