Neutral Citation Number: [2013] UKUT 22 (AAC)

Appeal No.  T/2012/68

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Nick Denton TRAFFIC COMMISSIONER for the South East and Metropolitan Traffic Area

Dated 23 October 2012

 

 

 

Before:

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

David Yeomans, Member of the Upper Tribunal

Andrew Guest, Member of the Upper Tribunal

 

 

Appellant:

PETER NICHOLAS WENZAL PRIEDEL t/a SANDWICH STATICS

 

 

 

Attendances:

For the Appellant: The Appellant appeared in person.

 

 

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

Date of hearing: 18 January 2013

Date of decision: 5 February 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

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

 

 

 

 

SUBJECT MATTER:-   Financial standing, repute, professional competence.

 

 

CASES REFERRED TO:- None.

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the South East and Metropolitan Traffic Area to refuse the Appellant’s application for a standard international goods vehicle operator’s licence.

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

(i)                   Peter Nicholas Wenzel Priedel, (“Mr Priedel”), held a standard international operator’s licence no. OK1010433.  Following a Public Inquiry in May 2004 this licence was suspended for 7 days.  Vehicles operated by Mr Priedel had received prohibitions and vehicles authorised under the licence had been parked away from the operating centre.

(ii)                 In October 2006 licence no. OK1010433 was revoked.  In addition to further parking of authorised vehicles away from the operating centre dishonest swapping of vehicle identities was found to have been proved.  A finding that Mr Priedel had lost his good repute was made and he was disqualified from holding or obtaining an operator’s licence for 12 months.

(iii)                In July 2008 Mr Priedel was granted a new standard international operator’s licence, no. OK1079292.  That licence was revoked with effect from 31 July 2012, following a Public Inquiry, which commenced on 3 April 2012, and was concluded on 26 April 2012.  At the conclusion of that Public Inquiry the Deputy Traffic Commissioner found that there had been a number of breaches of s. 26(1) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].  These arose because prohibitions had been issued, there had been excessive intervals between Preventative Maintenance Inspections (“PMI’s”) and vehicles had not been kept in a fit and serviceable condition.  The Deputy Traffic Commissioner concluded that Mr Priedel’s repute as a Transport Manager and an operator had been tarnished but not lost.

(iv)                At the conclusion of this Public Inquiry the Deputy Traffic Commissioner went on to indicate that she would consider granting an interim licence, if a new application was made, if the application was supported by: (i) evidence of appropriate financial standing, (ii) evidence of attendance at a VOSA new operator seminar, and (iii) attendance at or confirmation of a booking for a residential CPC Transport Manager refresher course.

(v)                 On 12 June 2012 the Appellant applied for a standard international goods vehicle operator’s licence to authorise 4 vehicles and 1 trailer.  The amount required to satisfy the requirement of appropriate financial standing was £20,300.  The details provided for the operating centre indicated that there was ample space both for parking the authorised vehicles and for housing the stock of static mobile homes required for the Appellant’s business.  The Appellant declared, in the application, that he had held the two operator’s licences to which we have referred and that they had been suspended or revoked.  However in answer to the question: “Has any person named in this application (including partners, directors and transport managers) been disqualified from holding or obtaining an operator’s licence by any traffic commissioner?” he replied ‘No’.

(vi)                On 24 June 2012 the Appellant applied for an Interim licence.  A covering letter from the Appellant indicated that he intended to continue as Transport Manager assisted by John Donald, until Mrs Wright, (Office Manager for the Appellant), passed her International CPC, which together with a refresher course for Mr Priedel, had been booked for January 2013.  That application was deferred to await further information but then refused on 5 September 2012.

(vii)              On 12 September 2012 the Appellant was called to a Public Inquiry at which the application for an operator’s licence was to be considered.  The letter indicated that the Traffic Commissioner would need to be satisfied that the Appellant met all the requirements of s. 13 of and Schedule 3 to the 1995 Act.  In particular the Appellant was reminded of the requirements (a) to have a stable and effective establishment in Great Britain, (b) to be of good repute, (c) to have appropriate financial standing and (d) to be professionally competent.  In addition the Appellant was reminded of the requirement to have a designated Transport Manager who was (a) of good repute and (b) professionally competent.  Reference was also made to the need to satisfy the requirements of s. 13C of the 1995 Act.  The Appellant was warned that the Traffic Commissioner would take into account the previous history and, in particular, the failure to declare the fact that Mr Priedel had been disqualified from holding or obtaining an operator’s licence.

(viii)             The Appellant put forward financial evidence from several sources.  Taking into account the overdraft on his own account, which was effectively a trading account, the balance available was limited and insufficient on its own to satisfy the requirement to be of appropriate financial standing.  However in addition to this evidence the Appellant was able to put forward a Statutory Declaration from his wife for a sum sufficient to satisfy the requirement.  This was based on the amounts available on credit cards in her name and it was properly supported by statements for these accounts.

(ix)                The Public Inquiry took place before the Traffic Commissioner on 18 October 2012.  Mr Priedel and Mrs Wright were both present on behalf of the Appellant.  The Traffic Commissioner set the scene by referring the previous history and Mr Priedel agreed with the comment that it was not a very distinguished history.  However he went on to point out that one of the problems in the past had been lack of space in the operating centre resulting in vehicles being parked elsewhere.  He said that that particular problem had been solved by obtaining bigger and better premises.

(x)                 Mr Priedel went on to say that since the Public Inquiry earlier in 2012 he had sought to put the Appellant’s house in order, with the assistance of Mrs Wright.  He produced the receipt to show that the Appellant had paid to attend a refresher course on 28 November 2012 and for Mrs Wright to attend a CPC course on 26 November 2012 followed by an exam on 7 December 2012.

(xi)                The Traffic Commissioner then asked Mr Preidel about his failure to declare the fact that he had been disqualified.  Mr Priedel replied that he had contacted a member of the Public Inquiry Team at the Office of the Traffic Commissioner (“OTC’) to ask for advice and, as a result, decided to tick the box saying ‘No’.  He apologised for filling in the wrong box.  His attention was drawn to the declaration and in particular to the fact that it was an offence to make a false declaration.  He accepted that he had made a false declaration but said that it was not intentional and that if he had intended to deceive he would not have declared the earlier Public Inquiries.

(xii)               Mr Priedel was then asked about regular payments which appeared on the bank statements for his ‘trading account’.  Some were to P&O Ferries, others were for fuel.  He explained that the Appellant’s main business was buying, selling and delivering static caravans and mobile homes.  He said without an operator’s licence the Appellant was paying other people to make the deliveries on its behalf.  The Traffic Commissioner suggested that if a well known haulage company was asked to quote for a job they would give a price which included the cost of ferries and fuel.  Mr Priedel replied that the well-known company that the Traffic Commissioner had named would not be able to move mobile homes.  He explained that because the loads are ‘over-width’ they require special arrangements with ferry companies and special accounts with them, which the Appellant has but other hauliers do not have.  Hence the haulier used by the Appellant used the Appellant’s account with the ferry company having leased vehicles from the Appellant.  Mr Priedel confirmed that the haulier in question had its own operator’s licence and had experience in moving abnormal loads but that it was necessary to lease some of the Appellant’s vehicles to them because they were vehicles specifically designed for the purpose of moving mobile homes.

(xiii)             When the Traffic Commissioner asked about other payments and, in particular, payments by the haulage company for leasing the specialist vehicles and payments by the Appellant for delivering mobile homes Mr Priedel agreed that there were no such credits or debits in the bank statements adding, “we’ve got to sort that out sir, which will be dependent on the outcome of today”.  There was reference to sums of cash but no confirmation as to when and to whom they were paid.  The Traffic Commissioner commented: “A cynical person might suspect that you have actually been continuing operating using him as a front”.  Mr Priedel replied that he understood why the Traffic Commissioner might say that it was a case of ‘fronting’ but that if that had been the case they would have attempted to hide it which they had not done.  Mr Priedel was asked whether there was a leasing agreement.  He replied that he did not have it with him adding: “A lot will depend on what you decide to do today sir”.  The Traffic Commissioner made the point that it did not depend on his decision and that he would have expected, from the moment that the previous operator’s licence was revoked, that there would have been a proper agreement to lease the vehicles to the other operator and a contract of carriage under which the Appellant paid for the transport of the mobile homes.  He added that paying cash ‘under the table’ appeared to disguise the fact that in essence the Appellant was the real operator.  Mr Priedel explained that the trucks had been retained and were still being maintained so that they were available if the application was successful but that if the application for a new operator’s licence failed the trucks would be sold, which was why it did depend on the outcome.  He added that the trucks were driven by the other operator’s drivers and that his own had been laid off.

(xiv)             Mr Priedel went on to explain that delivering a mobile home involved more than merely transporting it to the destination.  There was a four wheel drive escort vehicle which accompanied the truck.  On arrival the driver had to unload and site the mobile home, which could take two or three hours.

(xv)              The Traffic Commissioner then turned to the question of finance pointing out that the Appellant was relying on his wife’s credit cards for the majority of the amount required.  He expressed concern about this describing it as “a very flimsy financial structure”.  Mr Priedel explained that the Appellant owned trucks made by Scania and Renault and that both companies only accepted payment by credit card, adding that it was how companies operated all across Europe.  The Traffic Commissioner reminded Mr Priedel that the cards were in his wife’s name and that she might have to inject a very significant sum into the business.  He then referred to the number of failed payments on the ‘trading’ bank account.  Mr Priedel said that the Appellant’s income had been reduced as a result of losing the operator’s licence.  The Traffic Commissioner asked why, instead of allowing payments to be refused, they had not been made through his wife’s credit card.  He replied: “We needed to keep the credit card for today’s hearing”.  He added, in relation to a specific payment that had not been met, that it resulted from a customer failing to pay on time.  The Traffic Commissioner set out the general picture and said: “This is the picture of an operator who is right at the limit of his financial stability”.  Mr Preidel replied that they had too much stock, that they had started to address the problem, that the stock was going and that as a result of expected payments, one of which, (a substantial payment), was expected within a week, they would have lost the overdraft within a month or two.

(xvi)             There was then a discussion about the fact that the application was for four vehicles.  Mr Priedel explained that while they would never have four vehicles on the road at the same time they needed four vehicles to cater for different types of mobile home and different destinations.  The Traffic Commissioner pointed out that the vehicles were quite old.  Mr Priedel explained that the older vehicles had steel bumpers, which could be repaired if they hit anything on site, whereas newer vehicles had plastic bumpers, which were expensive to replace if damaged.  The Traffic Commissioner returned to number of vehicles required at a later stage and Mr Priedel said that, in theory, it would be possible to operate with an authorisation for two vehicles but, in practice, it would mean taking one vehicle off the licence and putting another on according to the type of vehicle required for a particular job.  He accepted that operating in that way ran the risk that forgetting to make a change would result in unlawful operation.

(xvii)            The Traffic Commissioner asked about the prohibitions and the failure to comply with PMI intervals, which had contributed, significantly, to the decision to revoke the previous licence.  Mr Priedel explained that the failure to comply with PMI intervals arose from a misunderstanding because he thought that the undertaking had been to perform them at 8 week intervals, when, in fact, it required them at 6 week intervals.  He explained that the prohibition related to a parking brake which did not operate and which had not been spotted because they had not put the vehicle over a rolling road.  He added that they had taken all the steps which had been suggested and that all vehicles sent for MOT tests since then had passed first time.

(xviii)          The Deputy Traffic Commissioner gave a written decision dated 23 October 2012.  He set out the previous history and the evidence given at the Public Inquiry, which we have summarised above.  Given the past history the Traffic Commissioner concluded that: “This is not the record of an operator who learns from his mistakes, takes his compliance and safety responsibilities seriously or is determined to improve his operation so as to avoid a repeat summons”. 

(xix)             The Traffic Commissioner went on to consider finance saying: “Mr Priedel has not persuaded me that he is of adequate financial standing”.  The main reasons for reaching that conclusion appear to have been (i) the fact that contrary to Paragraph 44 of the Senior Traffic Commissioner’s Guidance Document No. 2 on Finance, the credit card accounts relied on were not in the Appellant’ name, (ii) that these credit cards provided almost 92% of the finance required for four vehicles, (iii) that the Appellant had been operating at or beyond the limit of the authority on his own bank account, (iv) that the high rates of interest on credit card borrowing made it doubtful  whether this was a sustainable way of doing business, even though the Appellant had the theoretical ability to call on his wife’s credit though her guarantee.

(xx)               The Traffic Commissioner then stated that the manner in which the appellant had operated since the revocation of the previous licence aroused “some suspicion”, because of the way in which he had continued to pay for many of the operating costs and the absence of any formal agreements.  His conclusion was that these factors: “created a strong suspicion that” the other haulier’s licence “is being used as a front for continued operations by Mr Priedel”.

(xxi)             The final reason given by the Traffic Commissioner was this:

“Mr Priedel’s explanation of how he would cope if the licence were limited to two vehicles also caused me concern.  His vision of swapping four vehicles on and off the licence so that no more than two were being operated at any one time suggests that little in practice would differ from having the four vehicles applied for.  Finances for two vehicles would be easier to achieve, but he would still have four vehicles to maintain, with all the costs associated with that.  For that reason, I have decided not to pursue the possible avenue of persuading Mr Priedel to reduce the number of vehicles applied for”.

(xxii)            The Traffic Commissioner’s final conclusion was expressed in this way:

“Taken alone none of the above factors (apart perhaps from finance) would necessarily have proved fatal to Mr Priedel’s application.  But their cumulative effect is serious.  Mr Priedel has demonstrated in the past that he cannot be relied upon to operate in a compliant way; his finances are shaky in the extreme; he has not taken the care that he should have done to demonstrate that his arrangement with Vagabond was clearly consistent with the fact that his licence had been revoked; and he has shown little urgency to arrange the much-needed brush up of his transport manager knowledge and skills or to employ a qualified transport manager rather than someone who might obtain the qualification at some stage in the future.  At best the approach has been haphazard and vague, and is not the behaviour of someone who is serious about henceforth managing a stable and compliant operation”.

The Traffic Commissioner went on to find that the application was not in a state where it “can be approved, nor is there a strong likelihood of such a state being reached in the foreseeable future”.  The application was therefore refused.

(xxiii)           On 30 October 2012 the Appellant filed a Notice of Appeal.  Given the view we have taken it is not necessary to attempt to extract precise grounds of appeal from the letter that accompanied the Notice of Appeal.

3.           The Appellant attended the hearing of the appeal accompanied by Mrs Wright.  He provided us with background information stressing the specialised nature of his business and the fact that special vehicles, which cannot be hired, have to be used to move mobile homes.

4.           We bear in mind from the start that this was an application for an operator’s licence so that it was for the Appellant to satisfy the Traffic Commissioner that all the requirements for granting the application had been met.  Nevertheless we are satisfied that when an application for an operator’s licence is refused the applicant is entitled to know which, if any, of the statutory requirements have not been met.  In addition to the obvious reason of fairness there are two other reasons why this must be right.  First, it enables an applicant, who makes another application, to ensure that he or she can take the relevant remedial steps. However applicants must bear in mind that all the statutory criteria would have to be met on the second occasion, not merely those which had not been met on the first occasion.  Second, it assists the Tribunal hearing an appeal to know which of the criteria were not met and why they were not met.

5.           We also bear in mind that the Appellant rightly accepted that he did not have a ‘distinguished history’ as an operator.  The Traffic Commissioner was plainly right to regard this as a case that merited close and careful scrutiny.  The Appellant would have been wise to approach the Public Inquiry on the basis that his case and his explanations would be questioned and tested.

6.           Before turning to the detail there are two general points that we must make.  At one point, (see paragraph 2(xix) above), the Traffic Commissioner clearly stated that the Appellant had not persuaded him that he was of appropriate financial standing.  Later however the Traffic Commissioner said this: “Taken alone none of the above factors (apart perhaps from finance) would necessarily have proved fatal to Mr Priedel’s application”, (see paragraph 2(xxii) above).  We are left uncertain whether the Traffic Commissioner was saying that the Appellant had definitely failed to satisfy the requirement to be of appropriate financial standing or whether it was a case of ‘perhaps he has failed’.  Fortunately there are other, more substantial grounds on which the appeal can be decided. 

7.           The second general point is that apart from financial standing the Traffic Commissioner did not identify any other requirement, which the Appellant failed to meet.  Instead he stated that the cumulative effect of the factors he had mentioned was ‘serious’, (see paragraph 2(xxii) above).  There may well be cases where it is appropriate for a Traffic Commissioner to have regard to the cumulative effect of factors, which have emerged in the evidence.  However if that course is taken it is important to show that the only factors taken into account are those that genuinely do have the effect of strengthening each other.  There may well be cases, for example, in which loss of professional competence can be shown to contribute to a finding of loss of good repute.  However we question whether factors relating to loss of good repute or lack of professional competence, for example, are likely to make it either more or less likely that an applicant or an operator is of appropriate financial standing.  If, in a particular case, a Traffic Commissioner takes a different view it will be essential to include a careful explanation as to why other matters contribute to a finding of lack of financial standing.  In the absence of any explanation in the present case we are unable to see how the ‘other factors’ assist in showing that the Appellant failed to satisfy the requirement to be of appropriate financial standing, if, at the end of the day, this was the Traffic Commissioner’s conclusion.

8.           We must now consider, in greater detail, the initial finding that the Appellant had failed to persuade the Traffic Commissioner that he was of appropriate financial standing.  We have set out at paragraph 2(xix) the four reasons which the Traffic Commissioner gave for reaching this conclusion. 

9.           The first was the fact that contrary to Paragraph 44 of the Senior Traffic Commissioner’s Guidance Document No. 2 on Finance, the credit card accounts relied on were not in the Appellant’ name.  While this is correct as far as it goes it fails to add that the Appellant’s wife had made a Statutory Declaration or that, in accordance with the Guidance Document, such Declarations can be used to establish appropriate financial standing.  Once the full picture is considered it is apparent that this is not a strong point.

10.        The second reason given was that the credit cards provided almost 92% of the finance required for four vehicles.  As a matter of mathematics this was correct at the date of the Public Inquiry.  In our view the Traffic Commissioner was right to be concerned about this point.  However his concern should have taken into account the Appellant’s explanation that payment by credit card was required by Scania and Renault and that the nature of the business, involving foreign deliveries, also required reliance on credit cards.

11.        The third point was that the Appellant had been operating at or beyond the limit of the authority on his own bank account.  This was clearly borne out by the bank statements and accepted by the Appellant in evidence, though with the qualification that some of the problems were caused by a customer, who failed to pay.  In assessing this point the Traffic Commissioner should also have taken into account Mr Priedel’s explanation that his business had too much stock but was taking steps to reduce it.  However we accept that the task of assessing this explanation was made more difficult by the absence of any independent confirmation of the value of the stock.  In a borderline case such as this Traffic Commissioners are entitled to ask for the fullest available financial picture.  In turn operators would be well-advised to volunteer to provide a full financial picture, for example in the present case the provision of a balance sheet and profit and loss account, if available, or a stock valuation might have made a difference.

12.        The fourth point was that the high rates of interest on credit card borrowing made it doubtful whether this was a sustainable way of doing business, even though the Appellant had the theoretical ability to call on his wife’s credit though her guarantee.  Taken at face value this was a good point, as long as the situation in the months leading up to the Public Inquiry remained the same.  However Mr Priedel had explained in his evidence that the business expected to receive a substantial payment within a short time.  Unfortunately the Traffic Commissioner did not take this into account.

13.        The difficulty which we face is that in reaching his conclusion that the Appellant had failed to meet the requirement of appropriate financial standing the Traffic Commissioner failed to take all the evidence into account and/or failed to explain why evidence to which he did not refer did not alter his conclusions.  We recognise that some of this evidence would not necessarily assist the Appellant.  For example Mr Preidel said that the accounts that he had with Renault and Scania and the amount of foreign travel involved in the business demanded reliance on credit cards.  We accept that he was not asked about this but the available credit card statements would not appear to bear this out to any significant extent.  He also said that one explanation for the financial difficulties was the additional cost of paying another company to transport mobile homes to their destination.  The Traffic Commissioner pointed out that problems with unmet cheques went back beyond the date on which the previous licence had been revoked.

14.        On the other hand there is one other aspect of the evidence about finance that merited careful consideration.  Mr Priedel explained that he recognised that the business was holding too much stock and said that he was doing something about it and that a significant sum would be coming in during the following week.  He added that they would have ‘lost the overdraft within a month or two’.  Given the relatively short timescale involved we are unable to understand the Traffic Commissioner’s concluding remark: “… nor is there a strong likelihood of such a state being reached in the foreseeable future”.  It is clear that by ‘such a state’ he meant the application being in a state in which it could be approved.  In our view the receipt of the sum mentioned by Mr Priedel would have had a dramatic impact on the financial picture.  The Public Inquiry took place on 18 October 2012.  The decision is dated 23 October 2012 so, if Mr Priedel was right, the financial position would have changed for the better within days of the date of the decision.  Because the Traffic Commissioner did not refer to this part of the evidence in giving his reasons we do not know why he was not prepared to wait to see whether the Appellant actually received the money.  Our view is that he would have been wise to wait and see especially as this was an application by an operator who did not have an interim licence.  We don’t know whether receipt of the money would have made the difference between granting and refusing the application but it seems to us that it might have done.  If it had we would not have been surprised to see a requirement for further financial information to be provided within three or six months to see whether the improvement to the Appellant’s financial position had been maintained.

15.        At paragraph 2(xxi) above we have quoted the Traffic Commissioner’s findings on Mr Priedel’s explanation as to how he would cope with less than four vehicles.  We bear in mind that we have the benefit of a transcript, so that we can see exactly what was said, while the Traffic Commissioner saw and heard Mr Priedel give this evidence.  Taking those factors into account we are satisfied that the Traffic Commissioner’s concern is simply not borne out by the evidence.  It was the Traffic Commissioner who initiated this discussion by asking Mr Priedel why he was applying for four vehicles.  Mr Priedel replied that he had been “sort of expecting the question”.  He explained that the nature of the business was such that different vehicles were needed to take different loads and to cope with different conditions at different destinations.  He went on to say that he never had four vehicles on the road at the same time and that he would prefer to have a margin of one because a vehicle was being built to take the largest of the new mobile homes.  He said that a 7.5 tonne box van was needed to enable him to transport household effects for his customers, if necessary.

16.        A little later the Traffic Commissioner returned to the number of vehicles asking whether it was four or nothing.  Mr Priedel initially replied ‘Yes’.  Then he said that he needed all four vehicles but he went on to explain how it would be possible to work with an authorisation for two by taking one vehicle off the licence and putting another on.  He described how it might work in practice adding: “I mean it’s nonsense.  We wouldn’t want to do that but obviously if you limit it to say two, it’s something we might have to occasionally consider doing because of the nature of the different trucks and different jobs”.  The Traffic Commissioner pointed out that sooner or later a vehicle would not be added to the licence and would be operated unlawfully.  Mr Priedel replied; “Yes absolutely”.

17.        While we agree that the Traffic Commissioner was right not to consider granting the application for a reduced number of vehicles we are satisfied that the transcript shows that he came to the wrong conclusion about Mr Priedel’s approach to operating with a reduced authorisation.  It seems to us that Mr Priedel had carefully considered the implications of operating with a reduced authorisation, that he was alive to the dangers and that he made it clear that he did not want to operate in this way.  He was not stating what he wanted to do; on the contrary he was explaining why he did not want to operate in that way.  In our view this conclusion simply cannot stand.

18.        The specialist nature of the Appellant’s operation meant that some aspects of the evidence were difficult to assess.  For example there were inconclusive exchanges in relation to working hours.  Mr Priedel insisted that when taking a mobile home through France those involved could only work a 35 hour week, the Traffic Commissioner doubted whether this was correct.  Neither was in a position to show that the other was wrong.  The Traffic Commissioner was understandably concerned that the Appellant’s arrangement with another operator was a case of ‘fronting’.  By that we mean someone who does not have an operator’s licence operating behind the ‘front’ of a person who does have such a licence. Mr Priedel explained that the specialist nature of the business and the fact that it involved oversize loads explained the use of his vehicles and the use of his accounts and connections with Ferry operators and others.  Unfortunately Mr Priedel had not come prepared to back up his oral evidence with the relevant documents.  As a result the matter was unresolved leaving the Traffic Commissioner with a ‘strong suspicion’ that it was a case of fronting.  What we do not know is whether the strong suspicion of fronting led the Traffic Commissioner to conclude either that the Appellant had failed to establish good repute or that he had failed to establish professional competence or both.  In the absence of any clear finding one way or the other on either point it seems to us the matter is simply left ‘up in the air’ and still to be decided.

19.        We have considered whether or not we can reach our own conclusions on the basis of the material before us.  We have decided that we cannot do so.  We have not had the benefit of seeing and hearing the witnesses give evidence.  We cannot determine what, if any findings were made as to the requirements other than finance.  We cannot determine the impact on other aspects of the case of the incorrect conclusion about Mr Priedel’s evidence in relation to a reduced authorisation.  Bearing all those matters in mind the only appropriate course is to allow the appeal and remit the matter for rehearing and determination.  Hopefully that will enable a clearer and more up to date picture to appear.

20.        Mr Priedel appeared in person at the Public Inquiry and he appeared in person at the appeal.  He explained that he was very anxious not to appear to be hiding behind an advocate but wanted, instead to show that he had nothing to hide.  Such an approach is commendable but Mr Priedel would be wise to recognise that it has its disadvantages.  One disadvantage, which was all too apparent at the Public Inquiry was that Mr Priedel was ill-prepared to deal with some of the matters which were, perfectly properly raised by the Traffic Commissioner.  The most obvious being the question of ‘fronting’.  If Mr Priedel had accepted professional help from an advocate experienced in this field we have little doubt that this aspect of the case would have been better presented and that the relevant documents would have been made available.  It may be that the financial position would have been more clearly and fully presented as well.  Given the difficulties that emerged at the Public Inquiry we would urge Mr Priedel to re-consider the need for professional help at the rehearing of this matter.

 

 

 

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

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

5 February 2013