Neutral Citation Number: [2013] UKUT 395 (AAC) Appeal No.  T/2013/29

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Nick Denton, Traffic Commissioner for the

Metropolitan & South Eastern Traffic Area dated 28 March 2013

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

 

 

Appellant:

 

 

STUART McAULIFFE

 

 

Attendances:

For the Appellant: Stuart McAuliffe appearing in person

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 29 July 2013

Date of decision:   12 August 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be ALLOWED and the matter be remitted for rehearing before a different Traffic Commissioner

 

 

 

SUBJECT MATTER:-  Professional Competence and repute of a Transport Manager

 

 

CASES REFERRED TO:-  none

 

 

 

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Traffic Commissioner for the Metropolitan and South Eastern Traffic Area made on 28 March 2013 when he found that the Appellant was not professionally competent or of good repute and disqualified him from acting as a Transport Manager for a period of three years.

 

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

 

(i)              In late 2009, the Appellant became the nominated Transport Manager for Ocean Xpress Logistics Limited (“OXL”).  OXL held a standard national operator’s licence authorising one vehicle and one trailer, with one vehicle in possession.  The operating centre was at Padd Farm, Egham, Surrey.  The sole director of OXL was Shalini Arora, the wife of Jasvinder Arora who was the Company Secretary and the driver of the specified vehicle. 

(ii)             On 2 August 2010, OXL’s vehicle (KX06 CPN) whilst drawing a laden three axle semi-trailer, was involved in a minor road traffic accident.  Mr Arora was the driver.  TE Pope attended the scene and examined thirty three tachograph charts in the name of Jas Arora.  Analysis of the charts at the scene revealed missing mileage between charts.  Felixstowe Port Police confirmed that the vehicle was present at the port at times not covered by the charts produced.  Mr Arora explained that a second driver was employed.  Further analysis of the charts at the scene revealed that there were numerous occasions when the vehicle had been moved without a chart being used.  Thereafter, lines appeared to have been drawn onto the charts to show the mode trace at rest, although the distance trace showed that the vehicle had moved.  Further, paperwork present in the vehicle confirmed deliveries having taken place at times when the charts did not record vehicle movement. 

(iii)            Mr Arora was interviewed under caution.  He agreed that the charts indicated that a number of offences had been committed; he explained that the false rest traces were the result of jobs having been cancelled; he agreed that the vehicle had been moved without a chart being used and attributed the offences to mistakes on his part. 

(iv)           Following a request for further documentation covering the period 6 May 2010 to 6 August 2010, TE Pope received amongst other things, copy driving licences in the names of Mr Arora and Manjit Singh Dhami and 39 tachograph record envelopes containing charts in the name of M Dhami dated 5 May to 30 July 2010.  A further request was made for outstanding documentation and on 6 September 2010, the Appellant wrote a letter on Transmac headed note paper identifying himself as OXL’s Transport Manager and advising that no further documentation was available as copies were not kept.  He enclosed copies of emails to show that a person named Amit Karia was unwilling to provide the documentation.  The emails did not show any contact or company details for Amit Karia (these emails were not contained within the Tribunal’s appeal bundle.  In fact none of the numerous exhibits produced by TE Pope were included in the appeal bundle).

(v)             On 17 November 2010, TE Pope spoke to the Appellant on the telephone.  He explained that there was a lot of missing mileage from the charts already in his possession and that OXL should respond in writing to confirm that there were no further tachograph charts for the period 3 May to 2 August 2010.  As a result, TE Pope then received five tachopak envelopes containing twenty charts in the name of Jas Arora dated 3 to 31 August 2010 and one chart in the name of M Dhami dated 27 to 28 August 2010. 

(vi)           On 25 November 2010, Mr Arora wrote to TE Pope stating “neither myself as an operator or as a driver, nor my other driver, currently hold any tachographs that relate to (the above dates)”.  The letter contained an original letter dated 6 August 2010 on Transmac headed paper apparently signed by the other driver “Manjit Singh” and the operator Mr Arora.  The letter detailed tachograph infringements for the period 3 May to 30 July 2010.  The infringements related to incorrect use of the mode switch; removing the tachograph chart without making a manual entry; one instance of exceeding 4.5 hours driving without the required break.

(vii)          Three months then went by during which TE Pope attempted to arrange an interview with Mr Dhami.  When he was eventually interviewed it became clear that Mr Dhami could not have been the second driver of OXL’s vehicle, not least because he produced his digital tachograph printout relating to his professional driving for another company during the periods when he was supposed to have been driving OXL’s vehicle.  He had applied for a job with OXL and had provided a copy of his driving licence at that stage but he had never driven for OXL. 

(viii)         On 9 August 2012, Mr Arora was convicted at Ipswich Magistrates Court of 79 offences of knowingly making a false tachograph record and was sentenced to eight months imprisonment on each offence to run concurrently.  The false records concealed insufficient daily rest, driving in excess of ten hours and exceeding 4.5 hours driving limit without a break. On one occasion he had driven for 18 hours 20 minutes without a break; on another occasion he had been on duty for 33 hours. 

(ix)           Following his conviction, OXL did not notify the Traffic Commissioner of Mr Arora’s convictions. 

(x)             In the interim an issue had arisen about the submission of a completed TM1 form which was required pursuant to Regulation (EC) 1071/2009 by 1 December 2011.  The Appellant had submitted the new form TM1 to the Office of the Traffic Commissioner (“OTC”) but without the signature of Mrs Arora as the director of OXL (that form is not within the appeal bundle).  As a fully completed form had not been received by 1 December 2011, a “propose to revoke” letter was sent to OXL.  No response was received.  However, for some reason which is not apparent on the face of the appeal papers, the licence was not then revoked, although the Appellant’s name was not re-specified on the operator’s licence and as a result, OXL was without a specified Transport Manager throughout 2012.  It would appear that the issue of whether it was a legal requirement for an operator to sign the TM1 rumbled on for some time as the Appellant sent a letter to the Traffic Commissioner on 11 October 2012 referring to “various communications” with “the licensing team at Leeds” regarding the form and the legal requirement already referred to.  The Appellant insisted that there was no such requirement and stated that he had been threatened via email by a member of staff in Leeds, that the absence of Mrs Arora’s signature on the form would result in licence revocation.  The Appellant stated that he was happy to provide all information that was legally required without delay but he and many others were getting “tired and quite frankly weary” at the repeated requests for information that was already held on the VOSA database.  As far as he was concerned, the only new information required by the form was his place of birth.  He indicated that he would be happy to meet the Traffic Commissioner to discuss matters further.

(xi)           Unfortunately, due to an oversight, the Appellant’s letter was not passed onto the Traffic Commissioner. When four months had passed, the Appellant wrote a follow up letter and complained to the Senior Traffic Commissioner about the Traffic Commissioner’s failure to respond.  On 14 February 2013, the Traffic Commissioner did respond, apologising for the delay which he attributed to a failure to place the letter before him.  He informed the Appellant that the new TM1 form required the following additional information to that required by the old form:  clarification of whether the Transport Manager was an internal or external Transport Manager (or both); a declaration by the Transport Manager that he or she understood that they could be disqualified from being a Transport Manager in any EU State; a signature from the operator to confirm that they were aware of type of Transport Manager they had engaged.  The Traffic Commissioner hoped that in the light of that explanation, the Appellant would reconsider his decision to refuse to obtain Mrs Arora’s counter-signature on the form and if the Appellant had any further points in relation to the new TM1, then they could be dealt with at public inquiry (see below). 

(xii)          The Senior Traffic Commissioner also wrote to the Appellant confirming the contents of the Traffic Commissioner’s letter and advising that failure to submit a completed new form TM1 would result in questions being asked of the relevant Transport Manager and that this may be undertaken at public inquiry.  As one was to be convened in any event, the failure to properly complete and return the form would be a matter to be taken into account when considering whether the Appellant was professionally competent.  He was urged to seek urgent specialist legal advice. 

(xiii)         A call up letter to a public inquiry had already been sent to the Appellant on 13 February 2013.  Professional competence and good repute were in issue by reason of Mr Arora’s convictions and the Appellant’s failure to properly complete the TM1 form.  On 7 March 2013, the Appellant wrote to the OTC stating that having now read the public inquiry brief prepared by TE Pope, the Appellant was withdrawing his application, that is, the issues he was raising about completion of the new TM1 form. 

(xiv)        The Public Inquiry took place on 14 March 2013.  OXL had also been called to the hearing and was represented by Mrs Arora; Mr Arora was called up in his capacity as a driver.   None of the parties were legally represented.

(xv)          Mrs Arora gave the following evidence relevant to the Appellant’s conduct as Transport Manager: her husband handled all aspects of OXL’s business and administration.  She would occasionally help with booking slots for the collection of containers at ports.  She had not met Michelle Tierney who had been the nominated Transport Manager for OXL from the start of the licence; neither had she met the Appellant either when he took over from Ms Tierney in about 2009 or thereafter.  Mr Arora had told her that the Appellant would be visiting their home once a month following his appointment but the Appellant did not attend.  OXL had not operated following her husband’s imprisonment in May 2012.  She denied having been advised by the Appellant that she should notify the Traffic Commissioner of her husband’s convictions.  She had forwarded the new TM1 form for completion to the Appellant when she had received it.  She could not recall whether she had signed it before doing so.

(xvi)        Mr Arora told the Traffic Commissioner that he did everything in relation to OXL.  Ms Tierney had visited his home and had taken away the tachograph charts for analysis; she would then return a report.  Prior to her emigration to Canada, she had introduced the Appellant to Mr Arora as a possible replacement Transport Manager.  The Appellant attended tha Aroras’ home in late 2009 and they had a long chat.  The Appellant said that he would visit once a month to look at the tachograph charts, the PMI records and to check the condition of the vehicle but he did not do so despite making arrangements to do so over the telephone.  The only occasion that the Appellant attended following the initial visit was when “the problem” with the tachograph charts came to light.  Mr Arora told the Appellant that he had been driving using two names.  The Appellant’s response was along the lines of “when I receive the tachographs, as my insurance, I will check the tachographs as though two different drivers had used them and if there are any infringements, then I will write to two drivers”.  Thereafter, Mr Arora sent to the Appellant twelve to eighteen months worth of tachograph charts and the Appellant then analysed them and returned them with infringement letters in Mr Arora’s name and in the name of Mr Dhami.  This was the first time that the Appellant had analysed any tachographs for OXL.  The next contact with the Appellant was after Mr Arora was in custody and related to the new TM1 form.  Mr Arora told his wife to sign the document and return it to the Appellant.  Then Mrs Arora received the “propose to revoke” letter and she contacted the Appellant again who informed her that the form had already been sent to the OTC and that she need not worry. 

(xvii)       Mr Arora stated that he did not have a contract with the Appellant.  All that he received was a monthly invoice sent by email by the Appellant for £150 plus VAT.  Mr Arora had considered this to be good value but in hindsight perhaps it was not, because the Appellant was not analysing the tachographs; he did not look at the vehicle at any stage; neither did he check the driver defect reporting system or the PMI records.

(xviii)      The Appellant told the Traffic Commissioner in evidence that he had been introduced to Mr Arora by Ms Tierney who had informed him that she had been OXL’s Transport Manager and that she had been regularly checking the company’s tachographs and that she had not identified any problems.  The company employed two drivers.  When the Appellant spoke to Mr Arora, he explained that his monthly charge for a company with one vehicle was £300 per month but having been told that Ms Tierney’s monthly fee had been £100 per month and that OXL could not afford more than that, it was agreed that the Appellant would be paid £150 as a starting point.  That fee would entitle OXL to four hours of the Appellant’s time per week.  The Appellant then notified the OTC and submitted a TM1 along with a covering letter setting out his other responsibilities as a Transport Manager on other licences. 

(xix)        The Appellant’s hours with OXL were flexible.  He mainly dealt with the tachograph charts but he also spent time advising Mr Arora about the business and the relevant legislation.  He checked the PMI records but he did not look at the vehicle at any stage because he is not a mechanic and in any event, he could get a feel for whether a vehicle was roadworthy by looking at the PMI records, the recorded repairs and the MOT paperwork.  He ensured that the PMI intervals were being adhered to.  He carried out his duties by attending the Aroras’ home and undertaking the checks in the sitting room.  He ensured that the driver defect reporting sheets were placed in tachograph packs that he had provided to Mr Arora.  His first check of the tachographs took place even before a contract of employment was in place.  He had seen two driving licences and tachographs for two drivers.  He informed Mr Arora that the charts were not compliant.  He advised him about the records that needed to be kept to comply with the working time directive.  He sent out infringement letters and advised Mr Arora about such things as driving in docks counting towards driving time.  When he checked the tachographs, the start and finish recordings “matched”.  He compared the drivers defect reports with the PMI records to see if defects were rectified.  He had contact with Mr Arora by telephone, email and “otherwise” on a weekly basis at least.  He had only met Mrs Arora once when he first attended the family home.  Thereafter, he understood that she was in India a great deal, although he had spoken to her on the telephone.  He had not visited the operating centre because it consisted of a tarmac strip which was used by multiple operators.  He had not asked to see the pay records of the second driver.  The Appellant did not consider that his level of input into OXL was inappropriate. 

(xx)          The Appellant went to see Mr Arora after he had been stopped on 2 August 2010 and it was then that Mr Arora revealed that he had been falsifying his charts.  The Appellant said that this would be handled by VOSA and that he should contact a transport lawyer.  The Appellant told Mr Arora that he would not lie to VOSA if he was contacted.  However, when he was contacted by TE Pope, he was not asked a direct question by him and as a result, the Appellant did not have to lie to him.  He supplied all of the information requested from him.  The Traffic Commissioner interjected at this stage and asked why the Appellant had not immediately responded to TE Pope’s request for tachographs for the month of August 2010.  The Appellant thought it was because he did not have them in his possession at that time.  He was asked whether he had thought of resigning.  He said that he had but he knew that the matter would be called to a public inquiry regardless of his continued input and the Appellant thought that he could be more effective if he continued in his role.  OXL had been reasonably compliant.  Maintenance had never been an issue; the only infringements on the tachographs were minor things such as driving within ports and swapping containers whilst on rest.  There had been nothing to alert him to false charts.  The change over to the fictitious driver only took place at Felixstowe or London and he had been told that the second driver would be put up in digs which was not uncommon.  Once the Appellant had been informed that Mr Arora alone had been driving the vehicle, the Appellant took the view that it was not for him to sort out.  When Mr Arora asked him to continue as Transport Manager, he took the view that provided there were no other infringements of a similar nature then he would.  OXL then continued to operate for three or four months until Mr Arora had another accident near Felixstowe resulting in the vehicle being off the road for a considerable period of time and OXL could no longer afford the Appellant’s fees.  That was about May 2012.  Then Mrs Arora informed him that Mr Arora had been convicted and imprisoned and the Appellant informed her that she must notify OTC of the convictions.  It was about November 2012, that the Appellant sent in a new TM1 form without Mrs Arora’s signature.  He then sent a second form in when the “minded to revoke” letter was received.  There then followed the argument as to whether the TM1 form should be signed by the operator at all.  At this stage in the Appellant’s evidence, the Traffic Commissioner stated “I do not see any point (in going into this) because you have resigned from the Operators (sic)  .. I do not propose to go into it”. 

(xxi)        The Appellant informed the Traffic Commissioner that he was not working as a Transport Manager at present due to a medical condition but having worked in the transport industry for 22 years and having obtained a CPC in 2005, he hoped to do so in the future.  He had discharged his duty as a Transport Manger for OXL with due diligence. 

(xxii)       In his written decision, the Traffic Commissioner determined that OXL had lacked professional competence throughout its licence because its Transport Manager had never exercised the necessary degree of involvement in the management of its transport activities and did not continuously and effectively manage the operations.  He had not seen the one vehicle and as a result, he could not have checked that the driver defect reporting system was being properly implemented.  He was not sufficiently close to OXL to realise that the second driver was a fiction.  He referred to the conflict in the evidence about how often the Appellant checked the tachographs but concluded that even if he had analysed the charts monthly as the Appellant had asserted, he had failed to detect that Mr Arora was drawing a line on charts to indicate that rest had been taken.  TE Pope had easily spotted that the charts were false by comparing the distance traces with mileage entered onto the centrefields.  The Appellant should have done the same.  Further, in several contacts with TE Pope, the Appellant failed to inform him that Mr Arora was the sole driver.  Mr Arora had claimed that when the Appellant knew the truth, he simply analysed the charts as if there were two drivers.  Although the Appellant disputed this, it was beyond dispute that following the deception being disclosed to him, the Appellant had written to TE Pope informing him that charts were not available because a person named Amit Karia was unwilling to provide them.  The Traffic Commissioner concluded that this was a clear attempt to deceive TE Pope.  Further, the Appellant took no action to distance himself from the illegal operation by either notifying the Traffic Commissioner or resigning as Transport Manager.

(xxiii)      In undertaking the requisite balancing exercise, the Traffic Commissioner took account of the fact that the Appellant did pick up some tachograph breaches and had put Mr Arora right upon the law.  He may have checked the PMI records and the driver defect reporting sheets, although Mr Arora stated he did not do this.  On the negative side, the Appellant had never visited the operating centre or the vehicle and only visited Mr Arora infrequently.  As a result, he was not exercising continuous and effective control of the transport activities.  Further, he helped perpetuate Mr Arora’s deception by being economical with the truth to TE Pope and indeed fabricating a reason why some tachographs could not be produced.  He then ceased all practical involvement with OXL in May 2012 but continued to be the nominated Transport Manager, allowing OXL to continue on a reduced basis without a functioning Transport Manager in place.  That was not the behaviour of a responsible, reputable and professional Transport Manager.  The Traffic Commissioner concluded that the Appellant had lost his good repute and disqualified him from acting as a Transport Manager for a period of three years, the Traffic Commissioner being satisfied that the Appellant had shut his eyes to the obvious and when VOSA became involved, he played his part in continuing the deception.  Before the Appellant could re-establish his repute, the Appellant must pass a further CPC examination.

 

3.           The Appellant appealed to this Tribunal and again appeared in person.  His first submission was that the Traffic Commissioner handled the Public Inquiry “incorrectly” from the outset.  He had intended to consider the Appellant’s complaint made in October 2012 to the Traffic Commissioner which had not been responded to for four months.  The Appellant however, did not think that the issues concerning the new TM1 form were relevant.  He felt that approach to the submission of a fully completed TM1 form had prejudiced him in the eyes of the Traffic Commissioner.  However, the Appellant continued to be of the view that he was not legally obliged to complete the new form and it was morally incorrect to force a Transport Manager to provide repeat details in a new form.  He described VOSA as antiquated and out of date.  He submitted that the prejudice the Traffic Commissioner felt towards the Appellant was obvious from the way that he was questioned.  There had been no issues about maintenance and yet the Appellant was cross examined about attending the operating centre and looking at the vehicle.  The Appellant was not a qualified mechanic and had checked the driver defect report system and the PMI records to make sure that they were completed and in order.  It was clear that the Traffic Commissioner did not understand the concept of an “operating centre”.  He assumed that it was a place where there was an office and that the operator worked out of operating centre.  The reality was in this instance was that the vehicle was only at the operating centre for 8% of the week and all the records were checked at the operator’s home address.

 

4.           The Appellant went onto complain about the Traffic Commissioner asking Mr and Mrs Arora leading questions and the Appellant complained that the Traffic Commissioner himself had approved the way the Appellant had been working as a Transport Manager by allowing his name to be specified on the OXL licence.  He also stated that Mrs Arora had lied when saying that she had never met him.  The Traffic Commissioner did not deal with any of the conflicts in the evidence given by the Aroras’ on the one hand and by the Appellant on the other.  As for the Appellant’s failure to detect tachograph offences, he informed the Tribunal that he had only looked at the tachographs after Mr Arora had been stopped by TE Pope in March 2012 because he had only been the Transport Manager since late 2009.  In any event, he would not have been able to detect that Mr Arora was falsifying the charts.  He pointed to the fact that TE Pope had used the services of a handwriting expert for him to reach that conclusion.  The Appellant submitted that it was not unusual for a Transport Manager not to meet a driver when a vehicle was “double shifted”.  And as for playing a pro-active part in the deception following Mr Arora’s revelation that the charts were false, he asserted that he had not in fact been informed of the deception until after Mr Arora had been informed that he was going to be prosecuted.  He denied that he had lied to or misled TE Pope.  He simply answered the questions TE Pope asked. Finally, the Appellant submitted that whilst the evidence of the Aroras’ was that there had been no written contract between OXL and the Appellant, by virtue of a Freedom of Information request, the Appellant had seen documentation on the OXL file held by the OTC which clearly established that he had submitted a VOSA standard form contract when submitting his original TM1 form (a tick having been placed in a box on a checklist) but that the contract had been lost by the OTC.  This demonstrated that the Aroras’ had lied and that VOSA had lost relevant paperwork.

 

5.           The Tribunal is disadvantaged in this appeal as a result of not having had included in the appeal papers, any of the exhibits to the Public Inquiry Brief of TE Pope.  It would appear that there are other documents missing from the bundle, such as the original TM1 form and the contract that the Appellant maintains the OTC has received, such receipt having been confirmed within paperwork held within the OXL file and/or within the Appellant’s file held by the OTC.  Whilst the original TM1 form may not take matters much further, the issue of whether a contract existed between the Appellant and OXL was relevant to the issue of credibility as between Mr and Mrs Arora on the one hand and the Appellant on the other.  The issue of credibility is important because  the Traffic Commissioner did not make any findings of fact in respect of those important areas of conflict in the evidence as between the parties and whilst the Traffic Commissioner appeared to making his determinations adverse to the Appellant upon the basis of his evidence alone, there are a number of references to the conflicting evidence given by the Aroras in the Traffic Commissioner’s summary of the Appellant’s evidence giving the impression that the weight may have been placed upon that evidence.  The Traffic Commissioner should either have made findings of fact on those areas of conflict or should have made it clear that he was not taking any account of the Aroras’ evidence when setting out his adverse determinations in relation to the Appellant.

 

6.           The Traffic Commissioner made some significant adverse findings in respect of the Appellant, yet in respect of a number of them, he failed to highlight those areas when the Appellant was giving evidence in order to give the Appellant an opportunity to address them.  By way of example, the Traffic Commissioner did not ask the Appellant why he had not noted the lines drawn on the tachographs by Mr Arora to show periods of rest.  Or indeed, why he had not identified that the distance trace did not tally with the mileage recorded on any particular tachograph chart.  Yet these failures formed part of the Traffic Commissioner’s reasons for making adverse findings against the Appellant.  Neither did the Traffic Commissioner put to the Appellant that his letter of 7 September 2010 enclosing an email from a person named Amit Karia was a deliberate deception of TE Pope.  Whilst the Traffic Commissioner’s description of the Appellant having been “economical with the truth” when answering the questions  TE Pope posed to him following Mr Arora’s disclosure of the true position and that in itself might justify a finding of loss of repute, a finding of deliberate deception should have been put to the Appellant. Further, TE Pope should have been present at the public inquiry in order to deal with those areas of his evidence upon which the Traffic Commissioner intended to rely so that the Appellant had the opportunity to question his findings if he thought it appropriate to do so and to provide evidence as to the questions he put to the Appellant which, it was contended, were answered in an evasive or deceitful way.

 

7.           Further, we are satisfied that the refusal of the Appellant to complete a new TM1 form should have been dealt with at public inquiry.  The refusal of a Transport Manager to provide compliant documentation is a matter that is highly relevant to the issues of professional competence and good repute.  Whilst we reject the Appellant’s submission that there is a perception that the Traffic Commissioner was prejudiced against him because of the Appellant’s complaint about the delay in the Traffic Commissioner responding to his letter of complaint about the need to complete the new TM1 form, the issue has been left hanging in the air.  If the matter is not resolved, it may very well be that the issue will arise as and when the Appellant wishes to become a nominated Transport Manager in the future.

 

8.           We are satisfied that the Traffic Commissioner had to deal with a bad case of systemic falsification of tachograph records over a protracted period with attempts to deceive TE Pope after he had identified wrong doing on the face of the tachographs.  The Traffic Commissioner was faced with stark and conflicting evidence from Mr and Mrs Arora on the one hand and the Appellant on the other about the Appellant’s input into OXL which did not make his task a simple one.  There was however, evidence upon which the Traffic Commissioner would have been justified in finding a loss of repute or lack of professional competence in respect of the Appellant,  but the automatic disqualification of a Transport Manager once such a finding is made, means that the greatest of care must be taken to ensure that the Transport Manager is given an opportunity to deal with the specific concerns that a Traffic Commissioner has about the evidence before him or her which may result in findings that automatically lead to the most draconian of orders.  Whilst a finding of loss of repute may well have been justified in this case, unless a Transport Manager is given an opportunity to answer the specific concerns of the Traffic Commissioner and determinations are made taking that evidence into account, either the disqualification may not be justified or the length of disqualification may not be justified (or may be too little).

 

9.           In the result, we feel we have no other option but to allow this appeal and remit this matter for rehearing before a different Traffic Commissioner. 

 

 

 

 

Her Honour Judge J Beech

12 August 2013