Neutral Citation Number: [2012] UKUT 371 (AAC) Appeal No: T/2012/36

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF MILES DORRINGTON,

DEPUTY TRAFFIC COMMISSIONER for the WELSH TRAFFIC AREA,

DATED 5 JUNE 2012

 

Before:

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

George Inch, Member of the Upper Tribunal.

John Robinson, Member of the Upper Tribunal.

 

 

Appellant:

PATRICK O’KEEFE t/a O’KEEFE BUILDING

 

 

Attendance:

For the Appellant: Mr R C F Wadkin, Solicitor, Messrs Shulmans LLP

 

Appeal heard at: Victory House, Kingsway, London

Date of hearing: 26 September 2012

Date of decision: 19 October 2012

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be allowed. The matter is remitted back to the Welsh Traffic Area to be heard afresh by a different Traffic Commissioner.

All issues are at large.

 

 

Subject matter:

Judicial nature of a public inquiry; Mistake as to whether operator legally represented;

Failure to deal with the key material issues.

 

Cases referred to:

Crompton v Department of Transport [2003] EWCA Civ 64

Katherine Oliver t/a JW Swan & Partners Appeal 2008/60 &2008/519

 

 

 

 

 

 

 

REASONS FOR DECISION

 

1)     This was an appeal from the decision of the Deputy Traffic Commissioner for the Welsh Traffic Area made on 5 June 2012 when he revoked the appellant’s operator’s licence under section 26(1)(c)(iii); (ca); (f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995 and disqualified him from holding or applying for an operator’s licence for 12 months.

 

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 is the holder of a restricted good vehicle operator’s licence that authorises the use of four vehicles and one trailer. The operator had authorisation to operate from two operating centres, with three vehicles and one trailer authorised from one operating centre, and one other vehicle authorised to operate from a separate operating centre.

(ii)    On 27 March 2012 a call-up letter was sent to the operator raising a number of issues including: prohibition notices (including 3 “S” marked prohibitions), fixed penalty notices, MOT failures, a report from a Vehicle Examiner listing a number of maintenance failings, a previous unsatisfactory maintenance investigation, a report from the Traffic Examiner relating to an incident on 18 November 2011 (see below) and referring to certain tachograph irregularities, change of entity without notification to the Traffic Commissioner, failure to notify the Traffic Commissioner of changes to maintenance and safety arrangements, failure to comply with statements of fact or expectation in relation to safety inspections and external maintenance contractor, and failure to comply with undertakings.

(iii)  One prohibition dated 18 November 2011 was “S” marked and listed some 15 defects. Fixed penalty notices had also been issued on that day to the vehicle driver for failure to produce tachograph charts and for defective suspension, and a driver prohibition was also issued in relation to the tachograph charts.

(iv)  In his report, the Vehicle Examiner concluded that there appeared to be a lack of knowledge of the requirements of the operator licensing system with regards to the maintenance of specified vehicles. Vehicles were allowed onto the public road with known defects, vehicles were being presented for pre-booked annual tests with serious and obvious defects and there were no systems in place to quality-control the work of the person undertaking maintenance inspections, or the repairers, or the drivers. If a thorough system had been in place, many of the problems found during the investigation could have been avoided. It was also clear from the prohibition notices issued that there were serious shortcomings in the maintenance system and, consequently, the Vehicle Examiner considered that the operator was not complying with statements of intent or undertakings.

(v)   The Traffic Examiner noted that the operator currently had four vehicles and one trailer in possession and gave some background in relation to the incident on 18 November 2011 when the operator’s vehicle was observed attempting to turn around whilst discharging heavy smoke. Police officers suspected that the driver may have been trying to avoid the check-site and a full inspection resulted in six immediate and nine delayed mechanical prohibitions being issued. The driver was not in possession of all the tachograph charts. Subsequently, when tachographs between 29 April 2011 and 18 November 2011 were examined, a number of irregularities were identified including missing mileage, charts left in over 24 hours, damaged charts and ‘mileage not fitting in’.

(vi)  The call-up letter also raised the question of financial resources. For the operator’s authorisation under a restricted licence, he was expected to demonstrate readily available capital and reserves in the sum of £8,200. The bank statements provided did not demonstrate adequate financial resources.

(vii) The public inquiry took place in Cardiff on 2 May 2012. The list of those present included Mr Ellis-Yorke of JEY consultancy, who was described erroneously as solicitor for the licence holder. The Deputy Traffic Commissioner explored the issue of finance at the outset of the public inquiry and in camera. The operator sought to persuade the Deputy Traffic Commissioner that, in addition to an overdraft, he should take into account a further loan that his bankers had offered to him. Unfortunately, the operator did not have satisfactory documentary proof and the Deputy Traffic Commissioner was not persuaded on the evidence available saying:

 “You were written to in a calling in letter and told what you had to produce, and the practice directions have been available for a long time. That is to say the statutory documents. You also instructed a solicitor, Mr Ellis-Yorke, to assist you with these matters.”

(viii)         The Deputy Traffic Commissioner went on to ask whether the operator had been entirely truthful with him and, when the operator went on to explain the nature of the loan the Deputy Traffic Commissioner said, “You are now getting defensive in your body language”. The operator attempted to explain to the Deputy Traffic Commissioner that the loan was a “land loan” and he had mentioned it in order to prove that the bank had sufficient confidence in him to afford a facility. The operator accepted that the loan was not intended for transport and the Deputy Traffic Commissioner said, “So I cannot take it into account, can I? So, you have not been entirely truthful”. The operator said he been trying to explain the position and the Deputy Traffic Commissioner interrupted him stating:

“Mr Ellis-Yorke knows the money has to be available for transport and I am not going to put him in a professionally embarrassed situation, because I am sure his ethics as a solicitor are far too high for that, but I’m looking at you, Mr O’Keefe.”

(ix)  Throughout this lengthy exchange Mr Ellis Yorke remained silent except to indicate that the operator wished to surrender the licence bearing in mind the change of entity. The Deputy Traffic Commissioner replied: “There is not a chance in hell of that licence being surrendered on the evidence before me”.

(x)   The in camera part of the public inquiry lasted some 15 minutes. The public inquiry then resumed in public and the Vehicle Examiner gave evidence. Part way through the Vehicle Examiner’s evidence-in-chief the Deputy Traffic Commissioner began questioning the operator about the non-return of a disc, resulting in the Deputy Traffic Commissioner saying: “I find that very hard to believe from an operator who has been in business since 2003. We’ll come to that in your evidence in due course…”

(xi)  The evidence of the Vehicle Examiner then continued. At the conclusion of the Vehicle Examiner’s evidence the Deputy Traffic Commissioner noted that the operator had been asked to bring documentary evidence relating to the vehicle maintenance system over the previous three months. The documentation produced did not cover the period of three months. Mr Ellis-Yorke said, “I did not realise that we were asked to give three months”.

(xii) In due course the Deputy Traffic Commissioner considered the number of vehicles that the operator had been operating under the licence saying, in respect of one vehicle, “You have got the disc in your possession, I am going to take it that you are operating that vehicle”.

(xiii)         Shortly afterwards the Deputy Traffic Commissioner said:

“I’m going to see whether you have been unauthorised while using an unauthorised operating centre, i.e. you have got authority for three and I’m going to see whether you have been using four. If you have, then I’m going to be referring your solicitor to section 7 of the Goods Vehicles Licensing of Operators Act 1995. It creates a criminal offence …”

(xiv)         At the end of a lengthy exchange involving the Deputy Traffic Commissioner, the Vehicle Examiner and, from time to time, the operator in person, the Deputy Traffic Commissioner asked Mr Ellis-Yorke if he had any questions for the Vehicle Examiner. Mr Ellis-Yorke said he had no challenge to make, which was note by the Deputy Traffic Commissioner, given that there had been three “S” marked prohibitions. The Deputy Traffic Commissioner then embarked on further questioning of the Vehicle Examiner at the end of which Mr Ellis-Yorke was given a further opportunity to cross-examine, but he had no questions.

(xv)The Traffic Examiner then gave evidence at the conclusion of which Mr Ellis-Yorke had no questions. Following this indication the Deputy Traffic Commissioner then asked more questions of the Traffic Examiner, occasionally moving to ask questions of the operator before reverting back to ask more questions of the Vehicle Examiner in relation to further examination of documents and further investigations that had been undertaken. The Deputy Traffic Commissioner then summarised the position as he saw it in relation to use of vehicles, saying:

“The trouble is, and I have scrutinised this, and I will do so with a fine tooth comb, believe you me, but … I have got you in possession and potentially operating five vehicles … so at the very least, there is four, when you only had an operating centre for three, and there is probably five.”

(xvi)         The operator then gave evidence in answer to questions from Mr Ellis-Yorke but, before long, the Deputy Traffic Commissioner took over questioning and it then emerged that the operator had been trading as a limited company and not as a sole trader. It also appeared that a standard licence was required. Mr Ellis-Yorke had no re-examination following questions from the Deputy Traffic Commissioner and his final submissions extended to some 13 lines in the transcript before he was interrupted by the Deputy Traffic Commissioner. Following further exchanges the Deputy Traffic Commissioner then expressed some views but stated that he would prepare a written decision, adding: “I have got up to 28 days in order to promulgate a final written decision. I will endeavour to do it within the next 14”. The Deputy Traffic Commissioner thanked Mr Ellis-Yorke for: “scaling down what could have been quite a lengthy and difficult inquiry by very sensible advice to your client that probably the evidence of the Vehicle Examiner and the Traffic Examiner are best left unchallenged. That spoke for itself, but I am grateful for the way you have conducted the hearing”. In the event, the Deputy Traffic Commissioner’s written decision, although showing the date 5 June 2012, was not posted out until 11 June 2012 – some 40 days after the public inquiry.

(xvii)        In his written decision the Deputy Traffic Commissioner noted that the evidence of the Vehicle Examiner and the evidence of the Traffic Examiner had not been challenged and, throughout the decision, Mr Ellis-Yorke was referred to as a solicitor. The Deputy Traffic Commissioner concluded, amongst other things, that the operator had admitted that he had operated more vehicles than he had authority to operate and that he knew this was happening. The Deputy Traffic Commissioner’s written decision did not address the question of financial resources in any way.

 

3)     At the hearing of this appeal, the Appellant was represented by Mr Wadkin who submitted a skeleton argument for which we were grateful.

 

4)     The first point made was that Mr Ellis-Yorke was not a solicitor although the appellant believed that he was, and at no time during the proceedings did Mr Ellis-Yorke correct the Deputy Traffic Commissioner when he was referred to as a solicitor. It was submitted on behalf of the appellant that had it been clear and known by the Deputy Traffic Commissioner that the appellant was not legally represented then the Deputy Traffic Commissioner’s approach may have been different. For example, the Deputy Traffic Commissioner appeared to have placed significant weight upon the lack of challenge to the evidence of the Vehicle Examiner and Traffic Examiner, and appeared to infer that the operator’s failure to produce material documentation, following legal advice, could only mean that such documentation did not exist or was unsatisfactory.

 

5)     The next submission related to the conduct of the public inquiry generally, including a lack of structure and the numerous interruptions.

 

6)     Third, the issue of financial resources was the first to be addressed at the public inquiry and it was perverse that the question of the adequacy of the appellant’s financial resources was not referred to at all in the Deputy Traffic Commissioner’s written decision. No findings on the subject were made.

 

7)     Next, there appeared to have been confusion in relation to the number of vehicles operated by the appellant. There was no evidence that more than four vehicles had been operated at any one time by the appellant - although it was accepted that the specification of vehicles was not as tightly monitored as it should have been. It would, at least, have been a compelling mitigation if any errors in relation to specification or de-specification had not resulted in more than four vehicles being operated at any one time, and an analysis of the list of vehicles produced by VOSA at the public inquiry showed the sequencing of dates when vehicles had been specified and removed. This issue, which appeared to concern the Deputy Traffic Commissioner greatly, had not been raised in the call-up letter although, when it was raised at the public inquiry, Mr Ellis-Yorke had neither sought an adjournment nor made any effort to explain or demonstrate that no more than four vehicles had been operated at any one time.

 

8)     Next, although it was admitted by the appellant that all vehicles were operated from one operating centre instead of the two shown on the licence, the fact that there was adequate space to operate all vehicles from the operating centre being used, and the mistake in not being clear as to the position, was not explored fully by the Deputy Traffic Commissioner.

 

9)     Next, the appellant had information to indicate that the vehicle which received the immediate “S” prohibition on 18 November 2011 had actually run off the road into a ditch, causing the mechanical issues which manifested themselves at the roadside, but this had not been explored at the public inquiry and no questions in relation to this had been put to the Traffic Examiner or Vehicle Examiner. Even if the basic facts given in evidence were unchallenged, a competent representative would have laid the groundwork for any mitigating features relied upon, and to introduce the efforts made by the operator to improve his maintenance arrangements.

 

10) Finally the Deputy Traffic Commissioner had noted that he would produce his decision within 28 days (but hopefully 14 days) whereas, in fact, it took substantially longer for the decision to be sent to the appellant.

 

11) We do not think that the Deputy Traffic Commissioner can be criticised for proceeding on the basis that the operator was legally represented. Although there is nothing on the face of the transcript to indicate that the Deputy Traffic Commissioner specifically asked Mr Ellis-Yorke if he was a solicitor, there are numerous references made and Mr Ellis-Yorke should have corrected the Deputy Traffic Commissioner’s misapprehension at the earliest possible opportunity. He did not do so. We think it possible, if not likely, that the Deputy Traffic Commissioner would have moderated his approach and taken greater steps to ensure fairness, had he known that the operator was not legally represented.

 

12) We accept, of course, that there is no magic in having a legal representative. Many Transport Consultants are excellent representatives and assist operators and Traffic Commissioners in many respects. Some solicitors and barristers know little about this specialist area of law and require a great deal of assistance from the Traffic Commissioner. But the Deputy Traffic Commissioner specifically referred to Mr Ellis-Yorke as being a solicitor, and to Mr Ellis-Yorke being bound by certain professional ethics, when this was not actually the case. He also drew inferences from Mr Ellis-Yorke’s failure to ask any questions by way of cross-examination.

 

13) In our view, having read the transcript with great care, we believe that the Deputy Traffic Commissioner would have drawn back from making assumptions about the operator receiving proper legal advice in relation to the conduct of the public inquiry and the production of documents relating to maintenance and financial resources, and he would not necessarily have drawn adverse inferences in the way that he did, had he known the true position. In many cases, an error as to the professional status of a representative will make no difference but, in this case, we are satisfied that it did make a difference.  It was likely that there would have been more structure to the proceedings and fewer interruptions had the Deputy Traffic Commissioner been informed that the operator was not being represented by an experienced and properly qualified solicitor.

 

14) The tribunal is of the view that, whether or not based on this misapprehension, the conduct of the public inquiry was unsatisfactory. It is recognised that, at a public inquiry, the Traffic Commissioner has an inquisitorial role and that this will often involve taking the lead in questioning, and clarification. Nevertheless, the conduct of proceedings such as this must remain essentially judicial.

 

15) In Crompton v Department of Transport [2003] EWCA Civ 64 Kennedy LJ pointed out that the Traffic Commissioner is a public authority for the purposes of section 6 of the Human Rights Act 1998, and must therefore act in ways compatible with Convention Rights. In our view, given that Traffic Commissioners have substantial powers over business and livelihood, and because public inquiries are judicial proceedings involving the finding of facts and the balancing of positive and negative factors, the essential ingredients of a fair judicial hearing must be present. These include a reasonably predictable and even-handed structure, proper opportunity for every party to present their case without excessive interruption, and the withholding of judgment until all the evidence and any final submission has been heard and properly considered.

 

16) In Katherine Oliver t/a JW Swan & Partners Appeal 2008/60 &2008/519 the tribunal said:

 

“We begin by reminding ourselves that we were not present and that a transcript cannot always convey the atmosphere of a Public Inquiry.  We also bear in mind that the jurisdiction of Traffic Commissioners is ‘inquisitorial’ rather than ‘adversarial’.  The difference in role means that a Traffic Commissioner is likely to play a much more active role in the proceedings than a judge trying a case in which both sides are represented.  Nevertheless there are limits to the extent to which a Traffic Commissioner can properly intervene.  Questions intended to establish material facts, questions intended to test assertions of fact and questions intended to test submissions which are being advanced are all perfectly proper, though there will be occasions on which the fair course is not to intervene at once but to wait and to ask questions a little later.  Interventions which do not serve any of these purposes or which disrupt rather than clarify evidence or submissions are likely to be unfair and inappropriate …"

 

17) In the present case, the tribunal takes much the same view. Many jurisdictions of a judicial nature - such as tribunals operating within the sphere of administrative law or, as another example, coroners - manage to combine an inquisitorial function with a judicial process in a spirit of scrupulous fairness and objectivity. There is a particular duty to allow a person to respond to allegations or criticism in their own way, having had a proper opportunity to do so, and without being hectored. There is a clear duty to maintain an open mind until all evidence and submissions have been presented and the parties are entitled to expect that, when promulgating a decision, the judicial decision-maker will, at least, address the key material issues arising in the case. In all these respects we have reluctantly found that this public inquiry fell short.

 

18) We agree that the omission in the written decision of any reference to the Deputy Traffic Commissioner’s findings in relation to financial resources is a significant shortcoming. This was a matter that had warranted considerable discussion in camera during which time the Deputy Traffic Commissioner had challenged the operator’s honesty, made reference to his body language, and specifically indicated that, in his view, the failure to provide the necessary evidence could not be attributed to poor legal advice because Mr Ellis-Yorke, who he wrongly believed to be a solicitor, knew that the loan money had to be available for transport and, “I am not going to put him in a professional embarrassing situation, because I am sure his ethics as a solicitor are far too high for that”. Having linked the evidence with regard to financial resources to his assessment of the operator’s honesty and credibility, and having explored the matter in the way that he did, it was incumbent upon the Deputy Traffic Commissioner to tell the operator what conclusions he had finally reached having had an opportunity to assess all the evidence in the round. That the matter was left in the air was, in our view, inappropriate and unsatisfactory . Whatever the reasons for this might be, it was a clear failure to deal with a key and material issue.

 

19) We also consider that the question of unauthorised use required a more focussed examination before adverse inferences could properly be drawn. It had not been properly raised as an issue in the call-up letter and, although it often happens that new issues arise in the course of a public inquiry, fairness requires in such cases that, if the issue is pivotal, an operator be offered proper time to reflect and respond. This could have been by way of an adjournment or by allowing time on the day to carefully look at the facts and records, given the obvious complexity of the matter. In any event, clarity as to the factual evidence, and a proper opportunity to address the matter, are vital before damaging conclusions can properly be drawn. As this did not happen, we do not think it right to attribute to the operator the admission he is said to have made, when set against the facts demonstrated in relation to which vehicles were specified and when, and the evidence (such as it was) as to actual vehicle use.

 

20) On maintenance and tachograph compliance alone we have no doubt that the Deputy Traffic Commissioner was entitled to regard this as a very bad case. He could well have read the papers and reached a provisional or preliminary view that he may have to consider revocation and, even, disqualification. If so, there was all the more reason to ensure that the operator had a scrupulously fair and structured judicial hearing and that the Deputy Traffic Commissioner refrained from unnecessary interruptions or expressing his views until all the evidence had been heard and any submissions had been concluded.

 

21) The position was made worse by the Deputy Traffic Commissioner’s uncorrected misapprehension as to the professional status of the operator’s representative and, when it was finally promulgated, the decision contained a material omission.

 

22) For all these reasons we conclude that a fresh public inquiry must take place. Not having heard any evidence ourselves, we could not begin to substitute our own decision in a case such as this. Having said that, we see no reason why any application following changes to entity and operating centre could not be heard at the same time, not least because the present licence falls to be revoked or surrendered as a consequence of both the operator’s change of entity and the new entity’s apparent need for a standard licence.

 

23) The appeal is allowed. The matter is remitted back to the Welsh Traffic Area to be heard afresh by a different Traffic Commissioner or Deputy. All issues are at large.

 

 

 

Judge Mark Hinchliffe, DCP

19 October 2012