Neutral Citation Number: [2014] UKUT 101 (AAC) Appeal No.  T/2013/66

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Nick Denton TRAFFIC COMMISSIONER for London and the South East of England

Dated 20 September 2013

 

 

 

Before:

His Hon Michael Brodrick, Judge of the Upper Tribunal

George Inch, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

 

Appellant:

VST BUILDING & MAINTENANCE LIMITED

 

 

 

 

Attendances:

For the Appellant: Martyn Berkin, of Counsel

 

 

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

Date of hearing: 17 January 2014

Date of decision: 27 February 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be ALLOWED to the extent that the disqualification of Mr Thaci is set aside but, (for the avoidance of doubt), the revocation of the Appellant’s operator’s licence stands.

 

 

 

 

 

 

 

 

SUBJECT MATTER:- Procedure, whether to grant an adjournment; Disqualification, providing for an opportunity to be heard.

 

 

 

 

 

CASES REFERRED TO:- Ladd v. Marshall (1954) 1 WLR 1489

2002/40 Thames Materials

Bradley Fold Travel Ltd & Peter Wright –v- Secretary of State for Transport [2010] EWCA Civ 695

 

 

 

 

 

REASONS FOR DECISION

1.           This is an appeal from the decision of the Traffic Commissioner for London and the South East of England to revoke the restricted goods vehicle operator’s licence held by the Appellant and to disqualify Mr Veledin Thaci, the director of the Appellant company, from holding or obtaining any type of operator’s licence for a period of six months.  

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

(i)                   The Appellant is the holder of a restricted goods vehicle operator’s licence authorising 7 vehicles and 2 trailers.  The operating centre specified on the licence was 32-36 Minerva Road, London, NW10 6HJ.  The sole director of the Appellant company is Mr Veledin Thaci.

(ii)                 The Appellant’s application for an operator’s licence was received on 23 December 2010.  An interim licence was granted on 3 June 2011, subject to a condition requiring the Appellant to submit original bank statements and other financial documents for June, July and August 2011 to the Office of the Traffic Commissioner, (“OTC”), no later than 30 September 2011.  Although this evidence was submitted the average amount available was insufficient to meet the requirement for the number of vehicles authorised.

(iii)                On 29 March 2012 the Appellant attended a Public Inquiry held by the Deputy Traffic Commissioner.

(iv)                On 30 March 2012 the Appellant was informed that its application for a restricted goods vehicle operator’s licence had been granted subject to a condition requiring the Appellant to produce further financial evidence no later than 30 April 2012.

(v)                 On 1 May 2013 a Vehicle Examiner visited the specified operating centre at 32-36 Minerva Road.  It became apparent that it was no longer used by the Appellant as an operating centre.

(vi)                On 3 May 2013 Mr Thaci was due to attend Yeading Goods Vehicle Testing Station by appointment for the purpose of a maintenance investigation. In the event Mr Thaci did not attend but instead one of the Appellant’s drivers presented vehicle registration Y381HMY for inspection.  An immediate prohibition was issued for loose wheel nuts and a delayed prohibition was issued for an insecure air brake actuator.  Maintenance records were supposed to be presented by Mr Thaci’s secretary but the Vehicle Examiner explained that he could only speak to a Director of the company or to the Transport Manager.  The secretary replied that Mr Thaci had had to attend a hospital appointment.

(vii)              The Vehicle Examiner contacted Mr Thaci and said that he needed to visit the operating centre in order to check the maintenance records for the authorised vehicles.  Mr Thaci suggested that they meet at the Registered Office of the Appellant company and that two more vehicles could be checked in the car park of the McDonald’s, which was opposite the Registered Office. The Vehicle Examiner asked if the Appellant had an operating centre.  Mr Thaci replied: “No, not at the moment”.  

(viii)             On 8 May 2013 the Vehicle Examiner met Mr Thaci.  The Vehicle Examiner was shown two Driver’s Defect books.  No other records were available.  Mr Thaci explained that they were in a locked container at the original operating centre.  He said that he would produce them as soon as possible, but they were never produced.  The maintenance investigation was considered ‘unsatisfactory’ for a number of reasons, namely the immediate and delayed prohibitions, the fact that the operating centre being used was not as specified on the licence, the fact that the annual test pass rate was 44%, that there was no forward planner in place, no PMI records were available for inspection, insufficient driver’s defect reports were seen and no maintenance contract was in place.  The Appellant was asked to respond to these shortcomings but did not do so.

(ix)                On 25 June 2013 one of the vehicles, authorised under the operator’s licence, was stopped in River Road, Barking.  The driver was John Leonard Parish.  He was asked to produce his last 28 days tachograph charts.  He replied that he had not got any because it was the first day he had worked for the company and he was just helping out because a driver had not turned up.  He said that he had collected the vehicle from outside the yard at Creek Road, and that he normally worked for his father, John Parish, at the recycling plant at 2 Creek Road.  Following an inspection an immediate prohibition was issued for an insecure seat.  It was varied to enable the vehicle to return to Creek Road a distance of about one quarter of a mile.

(x)                 On 28 June 2013 a Traffic Examiner wrote to the Appellant pointing that when he had visited the specified operating centre he found no vehicles or any office used by the Appellant.  He asked to make an appointment for a joint visit by a Vehicle Examiner and a Traffic Examiner at the place where the Appellant was then located.

(xi)                On 8 July 2013 a Traffic Examiner made a formal request for production of a wide range of documents and records connected to the conduct of the Appellant’s business.

(xii)               On 23 July 2013 the Appellant was informed that the Traffic Commissioner intended to hold a Public Inquiry on 11 September 2013 to consider whether regulatory action should be taken against the Appellant’s operator’s licence.  At the bottom of the first page, in bold type, the letter stated that: “Failure to attend the public inquiry may result in the Traffic Commissioner determining the matter in your absence”.  Towards the end of the letter, under the heading Further Advice, the following appeared: “Please note that the Traffic Commissioner is unlikely to grant an adjournment unless there are exceptional circumstances.  Any request for an adjournment should be submitted in writing, to this office, marked for my attention, stating why you feel that an adjournment should be granted”.

(xiii)             The call-up letter set out six grounds on which the Traffic Commissioner was considering whether to take regulatory action.  They were (i) use of an operating centre not specified on the licence, (ii) contravening any condition of the licence, (iii) the fact that prohibition notices had been issued to the Appellant’s vehicles, (iv) making or procuring to be made for the purpose of the application statements of fact which were false or statements of expectation which had not been fulfilled, (v) failing to fulfil undertakings recorded on the licence and (vi) that there had been a material change in the circumstances of the licence-holder.  The call-up letter went on to summarise the evidence that the Traffic Commissioner intended to consider at the Public Inquiry all of which was enclosed with the letter itself.

(xiv)             On 13 August 2013 the OTC wrote to the Appellant enclosing a report from the Traffic Examiner.  This set out the Appellant’s failure to respond to a request to make an appointment for its vehicles, maintenance systems and tachograph data to be examined, (see paragraph 2(x) above) and a requirement to produce documents, (see paragraph 2(xi) above).  It also referred to the fact that the Appellant’s vehicles were no longer using the specified operating centre and that one of the authorised vehicles had been stopped, (see paragraph 2(ix) above).  The Appellant was informed that this material would be added to the papers provided to the Traffic Commissioner for consideration at the Public Inquiry.

(xv)              On 29 August 2013, (a Thursday), Mr Berkin wrote to the OTC on behalf of the Appellant.  He said that he had been instructed to apply for an adjournment of the Public Inquiry, which was due to be held on 11 September 2013.  Mr Berkin went on to explain that a year earlier Mr Thaci had had a serious motorcycle accident while in Albania, that he had been told to return to Albania to the hospital which had saved his leg and that he was due to leave the next day.  Mr Berkin added that continuing treatment was vital to Mr Thaci’s recovery and that he was likely to be out of the country until mid December 2013.  It was suggested that a new date for the Public Inquiry should be set from February onwards.  The letter ended: “Rest assured VST do understand their obligations and all the records and information requested will be provided.  Unfortunately Mr Thaci is the only person who can deal with it”.

(xvi)             On 4 September 2013, (a Wednesday), the OTC replied that the request had been passed to the Traffic Commissioner who had refused the request for an adjournment.  The letter went on to set out the Traffic Commissioner’s reasons:

“He states that he finds it most unlikely that Mr Thaci has to return to Albania for treatment a year after this accident, but only ten days before the Public Inquiry.  No evidence has been produced for the urgency.

He further states that there are serious shortcomings that have been identified in respect of this company namely; failure to produce tachograph charts, prohibitions, unauthorised use of an operating centre and poor record keeping.  He cannot wait until February 2014 to hold the Public Inquiry.  The absence of Mr Thaci until the end of 2013 also raises the question of how the operation of the company will be overseen in his absence”.

(xvii)            On 5 September 2013 Mr Berkin replied.  After reference to the right to a fair hearing and the right to protect property he put forward two considerations.  The first was that: “it is impossible for Mr Thaci to get back from Albania by next Wednesday and his treatment was arranged before notification of the Public Inquiry”.  (The underlining is ours).  Mr Berkin expressed surprise that it had taken a week to respond to an obviously urgent request for an adjournment.  He said that if medical evidence was required it could be provided but that because it had to come from Albania it would take time.  The second consideration was that: “Mr Thaci is trying to comply with your prerequisites and it would be helpful if you could be more specific about what information is requested”.  He added that having spoken to Mr Thaci by telephone his instructions were to ask for a re-consideration of the request for an adjournment and for a more specific indication of exactly what he had to do to prepare his case.  He added that the statement from the Police Officer and the report from the Traffic Examiner had not been received.

(xviii)          On 5 September 2013 the OTC replied stating that Mr Berkin’s letter had been passed to the Traffic Commissioner who had stated that while he had every sympathy for Mr Thaci’s medical problems:

“The fact remains that an apparently seriously non-compliant operator is offering a new Public Inquiry date in February 2014 as the earliest convenient occasion for him to attend an inquiry.  In the meantime the company’s vehicles would continue to operate without even the apparently inadequate supervision that the director had provided so far.  The Traffic Commissioner cannot possibly accept such a state of affairs”.

The letter ended with the suggestion that the licence could be suspended pending the Public Inquiry but indicated that if the Appellant was unable to agree then the request for an adjournment was refused.  Copies of the missing statement and report were enclosed.

(xix)            On 10 September 2013 Mr Berkin replied.  He said that he had managed to speak to Mr Thaci, though the line was very poor.  He said that Mr Thaci had told him that even if he was fit to travel he would be unable to get a flight at such short notice.  He said that Mr Thaci was getting a medical report, but that it would need to be translated.  He added that Mr Thaci was the only one who could deal with the allegations, which were denied.  He said that it seemed unfair that the company could not have the adjournment requested, (i.e. until February 2014), and that he was again instructed to request an adjournment.  He indicated that if an adjournment was refused he could not see what useful purpose would be served by his attendance at the Public Inquiry and that in that event he was instructed to request detailed reasons for the refusal to adjourn and a stay.

(xx)               On 11 September 2014 the OTC replied indicating that the request for an adjournment, in the terms requested, had been refused and that detailed reasons would be given in due course.

(xxi)             At 0947 on 11 September 2013 Mr Berkin forwarded an email containing a copy of a medical report.  This confirmed that an MRI scan of Mr Thaci’s left knee had been booked for 11 September 2013, at 1550.

(xxii)            On 20 September 2013 the Traffic Commissioner gave a written decision.  The Traffic Commissioner began by setting out the history of the matter, which we have summarised above.  He then went on to give detailed consideration to the application for an adjournment.  In relation to the initial request for an adjournment he said this:

“If Mr Thaci had asked for an adjournment of a week or two in order to accommodate his medical need, then I might have been prepared to agree, but to suggest a date some six months hence, when he had already been in possession of the call-up letter for over five weeks, reflected in my opinion an entirely frivolous attitude to the seriousness of the inquiry, the legal requirement to produce records and the shortcomings which VOSA’s investigations had revealed”.

(xxiii)           In relation to the renewed request for an adjournment in Mr Berkin’s letter of 5^th September 2013 the Traffic Commissioner said this:

“Of course it is Mr Thaci’s right to receive a fair hearing, but that cannot mean that an operator may dictate when that hearing will take place, especially when the time offered by the operator as convenient to him is so far in the future”.

The Traffic Commissioner went on express astonishment at the request for further detail as to the information required for the Public Inquiry.  He quoted from the call-up letter which set out in great detail what the Appellant was expected to produce.  He questioned how it would have been possible to be more specific.

(xxiv)          The Traffic Commissioner’s reasons for refusing an adjournment were these:

“I decided that, in the light of the serious instances of non-compliance found with this operator, and detailed in both the vehicle and traffic examiner’s reports, I could not possibly allow the operator to continue to operate seven vehicles for a further five or six months before we held a public inquiry.  Quite apart from the issues of finance and non-compliance, there was the question of who was in control of the business while Mr Thaci was in Albania.  If no one was sufficiently competent in his absence to represent the company at a public inquiry, it was unlikely that anyone was sufficiently competent to run a safe and compliant operation either.  I did, however offer to suspend the licence until such time as a public inquiry could be held.  Mr Berkin did not have his client’s authority to agree to this suggestion”.

(xxv)            The Traffic Commissioner then explained that as no-one had been present from either VOSA or the Appellant on 11 September 2014 he had considered the matter on the basis of the written evidence.  He concluded that the Appellant had failed to provide financial evidence, with the result that he was not satisfied that it fulfilled the requirement of s. 13D of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].  In relation to the issues raised under s. 26 of the 1995 Act he found that on Mr Thaci’s own admission the Appellant had been using an unauthorised operating centre, in breach of s. 26(1)(a) of the 1995 Act.  He found that there had been a breach of the condition of the licence because the Appellant had failed to inform him of changes in the arrangements for maintenance and safety inspections, contrary to s. 26(1)(b) of the 1995 Act.  He found that prohibition notices had been issued to the Appellant’s vehicles, contrary to s. 26(1)(c)(iii) of the 1995 Act.  He found that in the absence of any evidence that safety inspections had been made every five weeks that there was a breach of a statement of expectation made when applying for the licence, contrary to s. 26(1)(e) of the 1995 Act.  He found that given the limited number of driver’s defect books produced, the poor MOT and Prohibition record and the lack of information about drivers’ hours there had been a failure to comply with undertakings on the licence, contrary to s. 26(1)(f) of the 1995 Act.  Finally he concluded that there had been a material change in circumstances in that apart from the changes about which he had not been informed Mr Thaci was absent and would be away from the UK for a period of at least three and a half months, with no-one else able to take responsibility for the licence.  The Traffic Commissioner then concluded that by comparison with the lack of any meaningful positive features there were significant negative factors, which are summarised in the conclusions set out above.

(xxvi)          While expressing sympathy for Mr Thaci’s health problems the Traffic Commissioner was clearly concerned that the Appellant was a seriously non-compliant operator, that its vehicles were not being properly maintained and that proper records were not being kept.  He asked himself the question: how likely is it that the Appellant will, in future, operate in compliance with the operator’s licensing regime?  He concluded that in the light of the previous history the answer was: “extremely unlikely”.  He went on to consider whether the Appellant’s conduct was such that it ought to be put out of business.  He concluded that it was and gave a number of reasons in support of that conclusion.  On the basis of these conclusions he revoked the Appellant’s operator’s licence with immediate effect.

(xxvii)         The Traffic Commissioner then turned to the position of Mr Thaci as the director of the Appellant company.  He decided to disqualify him from holding or obtaining an operator’s licence or from being a director of a company which holds or obtains an operator’s licence, for a period of six months, commencing on 20 September 2013 and ending on 19 March 2014.  He concluded that Mr Thaci had a poor track record in relation to operator’s licensing and had consistently sought to evade his responsibilities.  The Traffic Commissioner indicated that he had had regard to Mr Thaci’s medical problems in assessing the length of the disqualification at the more lenient end of the scale.

(xxviii)        On 30 September 2013 the Appellant filed a notice of appeal against this decision.  Four grounds of appeal were advanced.  The first concerned the refusal to adjourn the Public Inquiry and the failure to consider a short adjournment.  The second asserted that Mr Thaci had been disqualified without being warned that he was at risk of disqualification.  The third dealt with different arguments in relation to the refusal of an adjournment.  The fourth pointed out that with Mr Thaci back in the UK there was someone in a position to supervise the company and ensure compliant operation.

3.           Mr Thaci was present at the hearing of the appeal and he and the Appellant company were represented by Mr Berkin.  In advance of the hearing Mr Berkin provided us with a helpful skeleton argument, for which we are grateful. In addition he provided us with witness statements from Mr Thaci and from a Mr Wilkes, who had been engaged by Mr Thaci to give advice about operating compliantly.

4.           The main focus of Mr Berkin’s submissions related to the refusal to grant an adjournment.  Subject to one point, in relation to the two witness statements, to which we will return, he realistically recognised that if the Traffic Commissioner was correct in refusing an adjournment it would be difficult, if not impossible, to show that he was plainly wrong to revoke the licence.

5.           Mr Berkin began by taking us through the correspondence relating to the application to adjourn and he submitted that the application had to be looked at ‘in the round’.  He went on to submit that if the matter was approached in that way it was apparent that there had been no proper ‘balancing exercise’ in reaching a decision as to whether or not to adjourn.  The next submission made by Mr Berkin was that the Appellant was entitled to a swifter response to the letter of 29 August 2013.  Mr Berkin then turned to the length of the adjournment requested.  He submitted that an adjournment to February 2014 was ‘only a suggestion’ and that if it was not acceptable it was harsh and disproportionate to refuse an adjournment altogether when the Traffic Commissioner accepted that he might have been prepared to agree to an adjournment of a week or two.  Finally, on this point, Mr Berkin submitted that the reasoning behind the refusal to adjourn was flawed and that the appeal should be allowed and the matter remitted for a full hearing.

6.           In relation to the witness statements of Mr Thaci and Mr Wilkes Mr Berkin recognised the constraint imposed by paragraph 17(3) of Schedule 4 to the Transport Act 1985, which provides that: “The tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.  Nevertheless he submitted that the Tribunal could take into account such circumstances in ‘exceptional circumstances’.  He urged us to conclude that that exception applied in the case of both the witness statements he had put forward.

7.           In our view it is important to remember at the outset that Traffic Commissioners only call operators to Public Inquiries, at which regulatory action is to be considered, if they have material that appears to justify an exercise of their discretion to revoke, suspend or curtail the licence under s. 26(1) of the 1995 Act or which justifies mandatory revocation under s. 27(1) of the 1995 Act.  We have used the expression ‘appears to justify’ because we are well aware that operators are entitled to test and challenge this material at a Public Inquiry.  As a matter of natural justice an operator who attends a Public Inquiry, on the given date, has a right to be heard.  Paragraph 1(1) of Schedule 4 to the Goods Vehicles (Licensing of Operators) Regulations 1995, (“the 1995 Regulations”) provides that a Traffic Commissioner must give written notice of the date, time and place fixed for holding a Public Inquiry: “at least 21 days before the date so fixed”.  We have no doubt that Parliament had in mind (a) the need to give an operator time to arrange for attendance and, if necessary, representation, at the Public Inquiry, and (b) the need for time to meet the case set out in the call-up letter and the documents accompanying that letter.  Our experience is that Traffic Commissioners rightly regard the obligation to give ‘at least 21 days notice’ as the minimum permissible period and that they allow longer periods when appropriate.  In the present case, for example the call-up letter is dated 23 July 2013.  It set a date for the Public Inquiry some 7 weeks later on 11 September 2013.

8.           The fact that an operator who attends a Public Inquiry on the date fixed has a right to be heard does not mean that the operator has an absolute or unqualified right to have the Public Inquiry adjourned simply by claiming that the date is unsuitable.  If that were the position unscrupulous and non-compliant operators would be able to avoid being held to account at a Public Inquiry.  Whether or not a Public Inquiry should be adjourned involves an exercise of discretion by the Traffic Commissioner, hence the passages in the call-up letter quoted in paragraph 2(xii) above.

9.           One of the submissions made by Mr Berkin was that reaching a decision as to whether or not adjourn involves a balancing exercise.  We agree.  In our view the material which justifies calling an operator to a Public Inquiry will always, or almost always, give rise to concern under one or more of the following headings, (a) the safety of the public generally and road users in particular, (b) unfair competition with competitors who comply with the regulatory regime and (c) undermining enforcement of the regulatory regime by appearing to allow an operator to ‘get away with it’ for a long period.  In our view all three of these concerns are relevant considerations when deciding whether or not to adjourn a Public Inquiry.  The weight to be given to them will vary according to the circumstances of the individual case and the ease or difficulty which the operator is likely to face in challenging the material.  For example in the present case the Appellant would have found it difficult, if not impossible, to challenge the Prohibitions and the fact that it had no operating centre.  On the other hand production of the maintenance records might have avoided the finding that the statement of expectation when applying for the licence had not been fulfilled.

10.        The call-up letter makes it clear that it is up to the operator to apply for an adjournment.  We agree that that is the correct position.  Operators seeking an adjournment must understand that it is up to them to persuade the Traffic Commissioners that the reason for requesting an adjournment is good enough to justify granting an adjournment, that it is confirmed, whenever possible, by independent evidence and that the length of the adjournment requested will not be such as to give rise to unacceptable risks to road safety, fair competition and/or the proper enforcement of the regulatory regime.  Operators should also bear in mind that Traffic Commissioners are entitled to take into account the circumstances in which the request for an adjournment is made.  It is important for operators to apply immediately it becomes apparent that there is a problem with the date fixed for the Public Inquiry.  Those who wait until the last moment, (perhaps hoping that this will compel the Traffic Commissioner to grant an adjournment), may well find that they have simply aroused suspicion as to their motives and as to whether or not there are genuine grounds for adjourning.

11.        The present case provides a good example of the wide range of factors which may be relevant to the question of whether or not to adjourn a Public Inquiry.  There will be some cases in which all the factors are so evenly balanced that it will be necessary to consider all of them in reaching a decision.  There will be other cases, and the present case is an example, where some factors are obviously predominant.  In such cases having explained why those factors are predominant a Traffic Commissioner is not required to give detailed consideration to every other relevant factor.

12.        In the present case the call-up letter is dated 23 July 2013.  The initial application to adjourn was made on 29 August, (i.e. five weeks later), and it was made the day before Mr Thaci was due to leave for Albania.  It was not supported by any independent evidence, although the Traffic Commissioner could have been forgiven for expecting that Mr Thaci would be in a position to provide a copy of the document giving the date, time and place of his medical appointment.  On 5 September 2013 it emerged that Mr Thaci’s treatment had been arranged: “before notification of the public inquiry”.  No explanation was ever given for the delay in applying for an adjournment.

13.        It seems to us that this is a classic example of how not to apply for an adjournment.  The application was five weeks later than it should have been.  Until 11 September 2013 it was not supported by any independent evidence when such evidence ought to have been available.  There was no explanation for the delay and the application was made the day before Mr Thaci was due to leave the country to travel to Albania.  In our view by 5 September 2013, if not before, the Traffic Commissioner must have asked himself: “is this a genuine application to adjourn or am I being ‘bounced’ into making a decision?”  Operators need to remember that it is the impact on the Traffic Commissioner of the way in which they present their application that matters.  In the present case the impact led the Traffic Commissioner to conclude that Mr Thaci and the Appellant had: “an entirely frivolous attitude to the seriousness of the inquiry, the legal requirement to produce records and the shortcomings which VOSA’s investigations had revealed”.  In our view the Traffic Commissioner was entitled to come to this conclusion and was entitled to take it into account in deciding whether or not to adjourn the Public Inquiry.

14.        The next factor to consider is the length of the adjournment requested.  In the present case it was made clear on 29 August that Mr Thaci would be out of the country until mid December 2013 and that he was asking for a new date for the Public Inquiry from February 2014 onwards.  In other words he was requesting an adjournment of about 5 months or more.  In the subsequent correspondence, in which the Traffic Commissioner was requested to re-consider his refusal to adjourn the position never varied.  The letter dated 10 September 2013 contains this sentence: “… it does seem unfair that the company cannot have the adjournment requested and I am instructed to request again an adjournment”.  In paragraph 14 of his decision the Traffic Commissioner said that if Mr Thaci had asked for an adjournment of a week or two to accommodate his medical needs he might have been prepared to agree.  Two arguments were advanced on behalf of the Appellant in relation to this comment.  The first was that if the Traffic Commissioner was prepared to consider a short adjournment it was illogical to refuse the adjournment requested.  The second was that the Traffic Commissioner was under an obligation to inform the Appellant that he would consider a short adjournment.

15.        We are not persuaded that there is any illogicality in the Traffic Commissioner’s approach.  While it may not have been spelt out expressly it is clear to us that what the Traffic Commissioner had in mind is that the weight to be given to concerns about road safety, fair competition and compliance with the regulatory regime will vary according to the length of the adjournment being considered.  In our view it is simply a matter of common sense that the risk to road safety, fair competition and/or compliance with the regulatory regime will differ according to the length of time over which the risk must be run.  The risk over a week or two may be acceptable if there is a good reason for an adjournment.  The risk over five months or more will be much greater and may outweigh even a compelling reason for an adjournment.  For these reasons we reject this argument.

16.        We also reject the suggestion that the Traffic Commissioner was under an obligation to make it clear that he would consider an adjournment of one or two weeks.  There may be cases in which a Traffic Commissioner chooses to put forward a counter-proposal as to the length of an adjournment but in our view there is no obligation to do so and, given the information available to the Traffic Commissioner, (that Mr Thaci would be out of the UK until mid December), we cannot see how a counter-proposal suggesting an adjournment of one to two weeks would have served any useful purpose in the present case.  Mr Berkin submitted that the request for an adjournment until February was ‘only a suggestion’.  We do not agree.  There is nothing in the correspondence to indicate that there was any possibility of flexibility over the dates in the period before February 2014.  The effect of the correspondence on the Traffic Commissioner was to present him a stark choice: do I adjourn this Public Inquiry until February 2014, at the earliest or do I proceed, if necessary, in the absence of the Appellant on 11 September?  Operators would do well to remember when applying for an adjournment that it is the impact on the Traffic Commissioner of what they do and say which matters because this is the only way in which Traffic Commissioner can be made aware of their motives or their thinking.

17.        The Traffic Commissioner was clearly very concerned about the impact of a five month adjournment.  In the circumstances of this case we are satisfied that he would have been failing in his duty if he had not given that factor great weight.  He pointed out that the call-up letter contained a detailed request for financial information, which had not been provided.  In addition it contained a detailed request for documents relating to safety inspections and other records, which had not been provided.  He went on to express justifiable concern as to who would be in charge of the Appellant in Mr Thaci’s absence.  He made the point that if there was no-one sufficiently competent to represent the company at the Public Inquiry it was unlikely that there was anyone sufficiently competent to run a safe and compliant operation while Mr Thaci was away.

18.        Putting it bluntly the risks involved in granting an adjournment would have been unacceptably high.  There would have been a risk of poorly maintained and potentially unsafe vehicles being operated on public roads.  There would have been a risk of unfair competition between the Appellant, on the one hand, and compliant operators on the other, incurring higher costs in order to be compliant.  There would have been a risk to compliance with the regulatory regime in that other operators would have been tempted to say: “if they are allowed to get away with it for so long we might as well do so too”.  Once such an attitude takes hold it is likely to be difficult to reverse.

19.        For these reasons we are satisfied that the Traffic Commissioner conducted an appropriate balancing exercise in deciding whether or not to adjourn.  We are satisfied that he was entitled to come to adverse conclusions given the way in which the application was made.  We are also satisfied that he correctly gave great weight to the risks which would be run if an adjournment of five months or more was granted.  In all the circumstances of this case the refusal of such a long adjournment was correct.

20.        Mr Berkin invited us to take into account the contents of the witness statements provided by Mr Thaci and Mr Wilkes.  In the case of Mr Thaci’s witness statement it deals almost entirely with matters before the date of the Public Inquiry.  Accordingly the question is whether we should give permission to adduce it as fresh evidence.  In deciding whether or not to admit fresh evidence the Tribunal has consistently applied the conditions laid down by the Court of Appeal in Ladd v. Marshall (1954) 1 WLR 1489, (see, in particular, 2002/40 Thames Materials).  The relevant Ladd v. Marshall conditions, (bearing in mind the prohibition on taking into account circumstances which did not exist at the time of the determination subject to appeal, see paragraph 21 below), are as follows:-

(i) The fresh evidence must be admissible evidence.

(ii) It must be evidence, which could not have been obtained, with reasonable diligence, for use at the public inquiry.

(iii) It must be evidence such that, if given, it would probably have had an important influence on the result of the case, though it does not have to be shown that it would have been decisive.

(iv) It must be evidence, which must be apparently credible though not necessarily incontrovertible.

In the present case we cannot see how the second condition can be met.  All the material set out in the witness statement relating to the period before 11 September 2013 was known to Mr Thaci before that date.  The witness statement could with reasonable diligence, (and in our view should), have been obtained for use at the Public Inquiry.  That being the case permission to adduce Mr Thaci’s witness statement as fresh evidence is refused.

21.       The position in relation to the witness statement given by Mr Wilkes is different.  We were told in the course of Mr Berkin’s submissions that Mr Wilkes was engaged after 11 September 2013.  His statement therefore deals with the steps taken since the Public Inquiry with a view to putting matters right and enabling the Appellant, if permitted to do so, to operate compliantly in the future.  Mr Berkin submitted that the Tribunal could, in exceptional circumstances, take into account matters, which were not in existence at the date of the determination the subject of the appeal.  As a matter of convenience we repeat the terms of paragraph 17(3) of Schedule 4 to the Transport Act 1985, which provides that: “The tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.  In our view the prohibition against taking into account any circumstances, which did not exist at the time of the determination the subject of the appeal, is clear and unambiguous.  The use of the expression “may not” is instructive in that it expressly excludes any question of the Tribunal having a discretion in the matter.  It is quite clear from the terms of paragraph 17(3) that there is no express reference to ‘exceptional circumstances’.  Given the lack of ambiguity and the clear indication that the Tribunal does not have any discretion to admit such evidence we can see no possible justification for concluding that this prohibition can be ignored in exceptional circumstances.  We reject the suggestion that the witness statement from Mr Wilkes can be considered because there are exceptional circumstances.  We are required by Parliament to ignore it.

22.       In our view there are very good reasons why this should be the case.  First, an appeal to the Tribunal does not involve rehearing all the evidence.  Instead it takes the form of a review of the material that was before the Traffic Commissioner, to which a transcript of the Public Inquiry will be added, if there was one.  That means that the Traffic Commissioner has the advantage of seeing and hearing the witnesses and that the Tribunal must be cautious about overturning the Traffic Commissioner’s findings of fact, (see paragraphs 34-40 of the decision of the Court of Appeal in Bradley Fold Travel Ltd & Peter Wright –v- Secretary of State for Transport [2010] EWCA Civ 695 for detailed consideration of the nature of an appeal to the Tribunal).  Permitting the Tribunal to hear and assess evidence of circumstances, which did not exist at the time of the determination the subject of the appeal, would create an unsatisfactory situation because neither the Traffic Commissioner nor the Tribunal would have had an opportunity to hear all the evidence.  Second, as we have pointed out in dealing with the argument that the Public Inquiry should have been adjourned operators will only be called to a Public Inquiry for consideration of regulatory action if there is material before the Traffic Commissioner which appears to justify such a course.  Since that material is likely to give rise to concerns in relation to road safety, fair competition and/or compliance with the regulatory regime there is likely to be a degree of urgency in resolving whether or not regulatory action is justified.  The approach set out by Parliament in paragraph 17(3) of Schedule 4 seems to us to be designed to encourage operators to take remedial steps before the date of the Public Inquiry rather than permitting them to wait for the decision of the Traffic Commissioner and then do the bare minimum required to meet any criticism set out in the decision.  The present case is a classic example of an operator doing too little too late, which is something that it is in the public interest to avoid.

23.       Mr Berkin realistically accepted that if he failed to persuade us that the Public Inquiry ought to have been adjourned it was unrealistic to submit that the decision of the Traffic Commissioner was plainly wrong.  We agree.  This was a bad case of a company being run with scant regard for the requirements of the regulatory regime.  We accept that Mr Thaci wished to challenge the case against the Appellant as set out in the papers but we doubt whether he could have hoped to succeed on every issue.  For example: (i) on his own admission the Appellant had no authorised operating centre and the Traffic Commissioner had not been informed that the Appellant had moved from the authorised operating centre, (ii) the prohibitions do not appear to have been challenged,  (iii) there was a material change in circumstances in that the Traffic Commissioner had not been informed of the identity of the person who was to be responsible for compliant operation while Mr Thaci was abroad and (iv) no financial evidence had been provided.  Irrespective of whether or not Mr Thaci would have been able to explain the other grounds on which the Traffic Commissioner took action we are satisfied that the four matters which would have been difficult to challenge would in themselves have justified the revocation of this licence.

24.       For all these reasons we are satisfied that the Traffic Commissioner was right to refuse an adjournment and was justified in revoking the licence.  The appeal against the revocation of the licence is dismissed and the revocation stands.

25.       Having revoked the Appellant’s operator’s licence the Traffic Commissioner turned to the question of whether Mr Thaci, as the director of the Appellant company, ought to be disqualified.  He concluded that disqualification was appropriate and imposed an immediate 6 month disqualification, which will come to an end on 19 March 2014. 

26.       It is suggested in the grounds of appeal that the disqualification was ‘handed down without giving Mr Thaci notice that he was at risk of personal disqualification’.  The suggestion seems to be that Mr Thaci was not given notice, as required by s. 29(1) of the 1995 Act, that the Traffic Commissioner would consider the issue of disqualification at the Public Inquiry.  If this is what is being suggested it is not correct.  The call-up letter was addressed to the Appellant and Fao, (‘for the attention of’), Veledin Thaci.  On page 2, under the heading ‘Action the Traffic Commissioner will Consider’, it made clear that if the Traffic Commissioner decided to revoke the Appellant’s operator’s licence he would also consider whether to disqualify the Appellant and/or each individual director of the Appellant.  Accordingly we are satisfied that Mr Thaci was put on notice that disqualification would be considered.

27.       We have no doubt that the Traffic Commissioner was right to consider disqualification in this case.  The way in which the Appellant company had been managed, in relation to the obligations imposed by the operator’s licencing regime, raised the question of whether Mr Thaci had the knowledge and ability to ensure compliant operation. 

28.       Having said that we are troubled by two questions.  First, was it necessary to proceed at once to consider the question of disqualification?  Second, was it sensible and/or fair to do so?  The position in the present case was that once the Appellant’s licence had been revoked the public interest in avoiding risks to road safety, fair competition and compliance with the regulatory regime was met.  There is no evidence that the Appellant held another operator’s licence or that he was the director of another company holding an operator’s licence.  In addition he was asserting that he would be out of the country until December 2013.  In that situation it seems to us that there was no need for urgent action on the issue of disqualification.

29.       The second question that troubles us is whether it was sensible and/or fair to disqualify immediately.  In our view the sensible course in the present case would have been to adjourn the question of disqualification to enable Mr Thaci to be present.  It is difficult to imagine, but nevertheless, possible that he would have been able to explain the absence of documents and the other shortcomings that have been identified.  It is possible, perhaps probable, that it would have become apparent in the course of a hearing that Mr Thaci lacks the knowledge and ability required to run a business that operates in compliance with the operator’s licencing regime.  If that had proved to be the case it seems to us that a longer period of disqualification would have been appropriate.  Given that we have concluded that there was no need to proceed immediately with the question of disqualification and given our conclusion that it was not sensible to do so, in the circumstances of the present case, we are satisfied that it was not fair to disqualify without giving Mr Thaci an opportunity to be heard.  It follows, in our view that the order for disqualification should be set aside.

30.       Mr Thaci has now served five months of the six month disqualification.  Taking that into account we do not consider that it would be appropriate to remit the matter for re-hearing by the Traffic Commissioner.  While, in theory, he might be entitled to impose a longer period of disqualification following a full hearing we do not believe that it would be right or fair to do so in this case.  That being the case it seems to us that it would be disproportionate to remit the matter so that the Traffic Commissioner could decide whether or not Mr Thaci should be disqualified for a further month.  We therefore exercise our power to ‘make such order as we see fit’ by allowing the appeal to the extent that the order for disqualification is set aside.

 

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

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

27 February 2014