Neutral Citation Number: [2012] UKUT 402 (AAC)

Appeal No.  T/2012/39

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Roger Seymour Deputy Traffic Commissioner for the West Midland Traffic Area

Dated 15 June 2012

 

 

 

Before:

Michael Brodrick, Judge of the Upper Tribunal

Patricia Steel,   Member of the Upper Tribunal

David Yeomans,   Member of the Upper Tribunal

 

 

 

Appellant:

P L LIMOS LIMITED

 

 

 

 

Attendances:

For the Appellant: Mr Z Aszal, of counsel instructed by Nisa Khattack

 

 

Heard at: Victory House

Date of hearing: 5 October 2012

Date of decision: 2 November 2012

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

SUBJECT MATTER:-   Impounding; Procedure, fresh evidence

 

 

CASES REFERRED TO:- Thames Materials Ltd appeal 40/2002

 

REASONS FOR DECISION

 

 

1.          This is an appeal from the decision of the Deputy Traffic Commissioner for the West Midland Traffic Area to refuse the Appellant’s application for the return of an impounded vehicle.

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

               (i)             On 22 August 2007 a company called Prestige Limos Ltd t/a Prestige Limousines, (“Prestige Limousines”), was granted a standard national public service vehicle operator’s licence, authorising 8 vehicles.

              (ii)             On 27 January 2010, during a visit to the company’s premises by two Vehicle Examiners, extensive advice and guidance was given to those present, who included Mr Shakeel Ahmed.  In particular those present were advised that operating by way of ‘dry hiring’, (hiring a vehicle and driver separately), was not acceptable.

            (iii)             On 22 April 2010 a further visit took place.  The VOSA officers who attended were told that bookings were not taken for more than 8 passengers because none of the vehicles had a COIF, (Certificate of Initial Fitness).  They were also told that ‘Harry’ took the bookings.

            (iv)             On 9 July 2010 a Traffic Examiner encountered a Stretch Hummer being used to transport 10 passengers.  The indications from the paperwork and the evidence of the driver suggested that the vehicle was being operated under a ‘dry hiring’ arrangement.  No operator’s licence disc was displayed.  Paperwork suggested that the vehicle had been hired from ‘YOUR HUMMER’ and that the driver was hired independently from www.bookachauffeur.co.uk.  The driver said that he received his instructions and the keys to the vehicle from ‘Shak’ at Prestige Limos and that it was Prestige Limos who paid him.  The customer said that the vehicle and driver had been booked together through ‘Harry’ from Prestige Limos.

             (v)             On 16 June 2011 a Deputy Traffic Commissioner gave written reasons for revoking the operator’s licence held by Prestige Limousines.  She went on to disqualify the two Directors of the company, from holding or obtaining an operator’s licence for a period of 6 months from 1 August 2011. Not surprisingly one of the issues that arose in relation to Prestige Limousines was the question of whether they were operating stretched limousines for hire or reward without an operator’s licence.  After a full and careful review of all the evidence the Deputy Traffic Commissioner concluded that they were and that they had been doing so for a considerable period of time, at least since 2008.  This provided one of the reasons why the Deputy Traffic Commissioner concluded that the operator could not be trusted to operate compliantly in the future and why it was appropriate and proportionate to revoke the licence.

            (vi)             On 4 May 2012 Shakeel Ahmed, trading as PL Limos, submitted an application for a Special Restricted PSV operator’s licence.

           (vii)             On the same day a VOSA Enforcement Scheme Manager sent an inquiry to the Appellant asking for a limo for 10 people on 17 May 2012.  This elicited a response saying that a 16 seat Hummer was available.

         (viii)             On 10 May a telephone booking for a limo was made, through the number on the website.  The Enforcement Scheme Manager spoke to a man calling himself Harry.  At no stage in the transaction was there any suggestion that the vehicle and the driver were being hired separately.

            (ix)             On 15 May 2012 Prestige Limos Ltd was dissolved.

              (x)             At 1710 hours on 17 May 2012 a black two axle stretch Hummer limousine, YU02 HUM, (“the Hummer”), was escorted by Police Officers to a VOSA checkpoint at the National Exhibition Centre, Solihull.  Ten passengers were seated in the rear of the vehicle.  It was not displaying a Public Service Vehicle Operator Licence disc.

            (xi)             The driver of the Hummer gave his name as Ghazanfar Ali.  He said that he was self-employed and that he worked part-time as a driver for Champagne Chauffeurs and that the Hummer belonged to them.  He said that when he collected the Hummer he was given the keys by ‘Harry’ and that it was ‘Harry’ who rang him when there was a job for him.  He was asked for the paperwork relating to the journey; he replied that there was none.  The only livery on the vehicle took the form of “Your Hummer 07950 590390” written on the rear and both sides of the vehicle.  It appeared that the vehicle did not comply with Regulation 45 of the Public Service Vehicles (Conditions of Fitness, Equipment, Use etc) Regulations 1981, in that there was no indication of the name and principal place of business of the owner. 

           (xii)             As the car was being photographed the driver was seen to be making phone calls.  He said that he had been speaking to ‘Harry’ from Prestige Limos and to ‘Shakeel’ from Champagne Chauffeurs.  When it was suggested to Mr Ali that what he had said indicated that he was working for Prestige Limos he became very agitated and maintained that his contact was with Champagne Chauffeurs.  He added: “the car belongs to Prestige Limos but I work for Champagne Chauffeurs”.  When reminded of what he had said earlier he then said that it was Shakeel who had asked him to do the job.  Mr Ali then changed his account again, saying that he had had a conversation with ‘Harry’. Mr Ali signed the note of all the conversations to acknowledge that they were accurate.  A large number of leaflets were found in a door pocket in the Hummer, they all advertised ‘Prestige Limos’.  A search of the Prestige Limos website then revealed that the mobile phone number written on the Hummer was the mobile phone number given for Prestige Limos on the website.  It was identical to the phone number on the leaflets found in the vehicle and the number on the back of the holder for the Tax disc.  The logo on the Prestige Limos website was identical to the logo which appeared on each side of the vehicle.

          (xiii)             At 1837 on 17 May 2012 the VOSA officers at the scene were given permission to impound the vehicle.  Shortly afterwards a Traffic Examiner made a number of telephone calls.  The first was to the number on the side of the Hummer, in other words to Prestige Limos.  The person who answered said that he had sold the vehicle.  He would not give his name.  Mr Ali was asked for a number and he eventually said that the number on the side of the Hummer was ‘Shakeel’s’ number.  A call to that number, on a different phone, immediately reached the answerphone for Prestige Limos.  Mr Ali became very angry when he heard the Traffic Examiner begin to leave a message saying that she had been given the number by Mr Ali.  He was again requested to provide a telephone number and then gave the number 07590 979586 and a name ‘Amardeep’.  When the number was telephoned a Mr Amardeep Singh answered and said that he was the owner and operator of the Hummer and that he traded as Champagne Limos.  He was told that VOSA were impounding the vehicle because they believed that there was no operator’s licence in force.  Mr Singh replied that he did have an operator’s licence.  However when he later gave the number it was found to relate to another operator.  Mr Singh was again told that the Hummer appeared to be unlicensed at which point he replied that the caller “should think very carefully about her next move”.  Mr Singh was asked to instruct the driver to hand over the keys of the Hummer but refused to do so.

         (xiv)             At 1907 hours on 17 May 2012 a green Toyota Starlet motor vehicle entered the car park where the Hummer was undergoing a mechanical inspection.  The driver and the front seat passenger of the Toyota got into the Hummer and proceeded to drive away in it.  The original driver of the Hummer then drove off in the Toyota.

           (xv)             On 21 May 2012 the Hummer was located, parked outside the premises of Prestige Limos.  Arrangements were made for it to be removed under the supervision of the Police.  On the same day notice of the impounding was given to those falling within the definition of ‘owner’ in the Public Service Vehicles (Enforcement of Powers) Regulations 2009, (“the 2009 Regulations”) and to others entitled to receive notice.  Arrangements were made for publication of the appropriate notice in the London Gazette.

         (xvi)             On 25 May 2012 the Appellant submitted an application for the return of the Hummer, on the ground that it did not know that the vehicle was being or had been used in contravention of s. 12 of the Public Service Vehicles Act 1981, (“the 1981 Act”).  In the particulars of this claim it was stated that in January 2012 the Appellant applied for a restricted PSV licence and that the application satisfied all the criteria for the grant of such a licence.  It was submitted that the Traffic Commissioner was therefore required to grant the licence and that the Appellant was entitled to infer and/or reasonably believed that a restricted PSV licence had been granted and that the vehicle was not being used in contravention of s. 12 of the 1981 Act.

        (xvii)             On 7 June 2012 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant stating that the hearing of its application for the return of the Hummer would be heard on 14 June 2012.

       (xviii)             The hearing took place before the Deputy Traffic Commissioner on 14 June 2012.  The Appellant was represented by Counsel and a Transport Consultant, and VOSA by a Senior Traffic Examiner.

          (xix)             Tracey Love, the Traffic Examiner who had been most involved with Prestige Limousines as well as with the circumstances leading to the impounding, gave evidence in accordance with her statement and other documents.  The effect of her evidence has been summarised above.  In cross examination Miss Love accepted that the Hummer was registered in the name of the Appellant and that Mr Shakeel Ahmed was shown as a director of the Appellant company, which had been incorporated in August 2011.  She went on to accept that the Appellant company was a separate legal entity to Prestige Limousines.  Miss Love accepted that the Hummer was the only vehicle stopped on 17 May and that the stop check had been arranged specially to stop it.

           (xx)             Mr Shakeel Ahmed then gave evidence on behalf of the Appellant.  He said that he had never been a director of Prestige Limousines but that he did help out in relation to that company and knew the directors who were Mr Mazhar Iqbal and Mr Akeel Ahmed, who were his cousins.  He went on to say that he bought two Hummers from Prestige Limousines, (one of which was the impounded Hummer), and arranged for the formation of the Appellant company.  He said that because they were bought from members of his family there was no documentation, it was done on trust.  Mr Ahmed then produced the registration certificate to show that the registered keeper of the Hummer was the Appellant company.  After some further discussion the Deputy Traffic Commissioner made a finding of fact that the Appellant was the owner of the Hummer.

          (xxi)             Mr Ahmed was asked about the steps he took to obtain an operator’s licence.  He said that he had taken legal advice from a Mr McVeighty and had three appointments with him in about August, September and October 2011.  He said that he explained the purpose for which he wanted a PSV operator’s licence.  He agreed that he was told what would be required of him, what fee would be payable and what documents would be needed.  He said that he had completed and signed an application form for an operators’ licence but that he did not have a copy because his Solicitor had kept it.  He accepted that he had not been back to the Solicitor to ask for a copy.  He said that he had been in touch with his Solicitor quite a few times without getting a response and that he last saw him in January 2012 but then corrected that to February.  He added that he had spoken to Mr McVeighty on the phone about two weeks before the Hummer was impounded and that he was told that the “licence is all in your process.  You actually own a licence” and that, as a result he thought that the licence was in the post, because he had given him the money.  He accepted that he had not received any discs for his vehicles nor had he had any documentation indicating that the licence had been granted. 

        (xxii)             The Deputy Traffic Commissioner then referred to the fact that the Appellant’s Transport Consultant had been to the Traffic Commissioner’s office and had established that the only application of which they were aware was an application for a Special Restricted Licence received on 18 May 2012.  It was accepted on behalf of the Appellant that such a licence would not have been sufficient for the Appellant’s purposes.  When it was shown to Mr Ahmed he identified his signature and said that it was the document that he had completed with Mr McVeighty in January 2012.  He confirmed this on several occasions later in his evidence.  It was pointed out that it was dated 4 May 2012.  Mr Ahmed said that the date was added by Mr McVeighty.  He repeated the assertion that he had not been to see Mr McVeighty since January 2012 and added that Mr McVeighty told him that he had sent it off in January.  He went on to say that he had had no contact with Mr McVeighty between January and early May 2012, at which point he was told that the money for the licence had been paid and: “because its all been paid, your application form has gone through, you will be having an operator’s licence”.  Mr Ahmed said that as a result of this conversation he thought that the licence had been granted though he was not given any indication of how long it would take for the licence to arrive.  At a later stage Mr Ahmed was cross examined about the application. He agreed that in the application for the return of the vehicle he had said that the application was made by the Appellant company.  It was pointed out that that the application for an operator’s licence, which Mr Ahmed had signed, was made in his name using the trading name PL Limos.  It appeared that Mr Ahmed had difficulty in understanding the difference between a sole trader and a limited company.

       (xxiii)             Mr Ahmed was then asked about the booking for 17 May 2012.  He said that he was aware of it and that normally he would have passed the job on to a company with a PSV operator’s licence, but that in view of the telephone call from Mr McVeighty he thought that he had the licence and knew that he needed the money so he decided to do the job.  He was asked about the fact that the name and principal place of business was not displayed on the vehicle.  He accepted that he had not checked what was required of the holder of an operator’s licence.

       (xxiv)             The Deputy Traffic Commissioner gave a written decision dated 15 June 2012.  He set out the facts, which we have summarised above and then correctly directed himself about the relevant law.  He concluded that VOSA had grounds to detain the vehicle and had acted lawfully in doing so.  He confirmed the indication which he had already given that the Appellant was the owner of the vehicle and therefore entitled to make an application for its return.  He went on to conclude that ‘Prestige Limos’ was the trading name of the Appellant company and that the vehicle was, at the time, being used by the Appellant in circumstances which required an operator’s licence.

        (xxv)             The Deputy Traffic Commissioner then considered the basis on which the Appellant claimed to be entitled to the return of the vehicle, namely that it honestly and genuinely believed that an operator’s licence, covering the use of the Hummer on 17 May 2012, was in existence.  The Deputy Traffic Commissioner concluded, on the basis of the searches which had been carried out, that there was no record  on the Licensing database of an application, either pending or granted, for  a standard national or restricted PSV operator’s licence in the Appellant’s name.  The Deputy Traffic Commissioner pointed out that the Appellant had not provided a statement or evidence from Mr McVeighty, or any other source, to confirm that such an application was made.  He referred to Mr Ahmed’s repeated assertions that the application for a Restricted PSV operator’s licence, dated 4 May 2012, and in his own name was the application that Mr McVeighty completed in January 2012.  The Deputy Traffic Commissioner went on: “I do not find any of Mr Ahmed’s evidence in relation to his solicitor credible and I reject it is its entirety”.  In relation to Mr Ahmed’s professed lack of understanding of PSV operator’s licensing and his failure to query the fact that he had not received the licence the Deputy Traffic Commissioner referred to the fact that Mr Ahmed had been present during the Public Inquiry at which the licence held by Prestige Limousines had been revoked.  He went on to say this: “I do not accept that he is as naïve or lacking in knowledge as he claims and accordingly I also reject this part of his evidence”.  The Deputy Traffic Commissioner then dealt with a submission that the Appellant had a profound ignorance of company law and had relied on his Solicitor saying: “I reject that submission entirely as I do the main substance of Mr Ahmed’s claim that he honestly believed his company had a valid operator’s licence covering the vehicle when it was detained”.  On this basis the Deputy Traffic Commissioner concluded that no grounds for returning the Hummer had been established and he refused the application.

       (xxvi)             On 10 July 2012 the Appellant filed a Notice of Appeal.  He put forward two grounds of appeal, first that the Deputy Traffic Commissioner had failed to take account of the evidence that a Solicitor had been instructed to make an application for an operator’s licence and second that it would be in the interests of justice for the Tribunal to take into account a statement from Mr McVeighty, since it tended to contradict one of the conclusions reached by the Deputy Traffic Commissioner.

3.          At the hearing of the appeal the Appellant was represented by Mr Aszal, who was instructed by Nisa Khattack.  Mr Ahmed was also present.  The main point taken by Mr Aszal was that the Deputy Traffic Commissioner was plainly wrong to find that Mr Ahmed’s evidence in relation to his dealings with his Solicitor was not credible and also wrong to reject it in its entirety.  In support of that submission he sought leave to adduce fresh evidence in the form of a statement from Mr McVeighty, which had been added to the appeal bundle.  We pointed out that from 2001, at least, the Tribunal, (or its predecessor the Transport Tribunal) has consistently followed the practice of the Court of Appeal when deciding whether or not to admit fresh evidence, see Thames Materials Ltd appeal 40/2002.  We referred Mr Aszal to paragraph 7 of that decision where the four criteria laid down by the Court of Appeal are set out.  In particular we invited him to explain how the fresh evidence met the second requirement, namely that “it must be evidence which could not have been obtained, with reasonable diligence, for use” at the hearing.  Mr Aszal replied that the Appellant had had different representation at the hearing, Mr Ahmed had given instructions and relied on those then representing the Appellant to obtain the necessary evidence.  He accepted that, with the benefit of hindsight, more could have done but submitted that, at the time, Mr Ahmed had acted with reasonable diligence and that the Appellant should not suffer because its previous legal representatives did not obtain this evidence.

4.          Each application for the admission of fresh evidence is likely to turn on its own particular facts.  In the present case it is clear that the Appellant was differently represented at the hearing and it is clear that his legal team knew that Mr Ahmed was saying that he had consulted a Solicitor with a view to applying for an operator’s licence.  In those circumstances it is not unreasonable to assume that any decision not to seek evidence from Mr McVeighty would have been taken by the lawyers as opposed to being taken by Mr Ahmed.  While it would be open to us to adjourn the hearing in order to attempt to investigate the matter further we have come to the conclusion that in this case such a course would be more likely to waste time and money than it would be to assist us in reaching a decision.  There will be other cases where the balance tips the other way.  In the present case we are persuaded that the criteria for the admission of fresh evidence are met and that we are therefore entitled to take the statement from Mr McVeighty into account.

5.          In his statement Mr McVeighty said that he saw Mr Ahmed, by appointment, on 25 January 2012 and that he was instructed by Mr Ahmed to apply for a Special Restricted PSV operator’s licence so that two Hummer vehicles, (one of which was the impounded Hummer), could be used for hire or reward by a new limited company, PL Limos Ltd.  Mr McVeighty went on to say that Mr Ahmed told him that he had made inquiries with VOSA and that he handed over a blank application form, which VOSA had sent to him.  Mr McVeighty said that he was instructed to apply for the licence, having explained to Mr Ahmed the type and the meaning of the licence for which he would be applying.  He added that he sent the completed form and other relevant documents and the fee to the VOSA office in Birmingham.  He said that the application was returned with the observation that it should be sent to VOSA Leeds and that that was done on 15 May 2012.  Finally he said that Mr Ahmed had regularly telephoned to ask the position in relation to the application but that as at the date of the statement, (29 June 2012), the licence was awaited.

6.          In our view this statement only undermines the conclusions reached by the Deputy Traffic Commissioner to a very limited extent.  In other respects it either contradicts the evidence given by Mr Ahmed or, at the very least, it fails to support it.  Mr McVeighty puts his first meeting with Mr Ahmed at 26 January 2012, thus contradicting the evidence of Mr Ahmed that there were three meetings in about August, September and October 2011.  Mr McVeighty does not support the evidence of Mr Ahmed about the conversation, which according to Mr Ahmed, led him to believe that the licence had been granted.  If anything the inference is that no such conversation can have taken place, given the date when the only application for an operator’s licence was sent to the correct office.

7.          In our view far from supporting the evidence advanced by Mr Ahmed in support of the Appellant’s case the fresh evidence from Mr McVeighty supports the conclusion reached by the Deputy Traffic Commissioner.  We agree that his conclusion was correct and the appeal is accordingly dismissed.

 

 

 

 

 

Michael BrodrickJudge of the Upper Tribunal, Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

2 November 2012