Neutral Citation Number: [2014] UKUT 373 (AAC)

Appeal No.  T/2014/09

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Beverley Bell, Senior Traffic Commissioner and TRAFFIC COMMISSIONER for the North West of England

Dated 30 December 2013

 

 

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

First Appellant:

 

HUNTERSTRONG ENGINEERING LTD t/a NORTHOVER HEAVY LOGISTICS

 

Second Appellant:

 

CRAIG NORTHOVER (Director and Transport Manager)

 

Third Appellant:

 

GAEL NORTHOVER (Director)

 

 

Attendances:

The first Appellant: was not present or represented.

For the second and third Appellants: James Backhouse of Backhouse Jones Solicitors

 

 

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

Date of hearing: 10 June 2014

Date of decision: 18 August 2014

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that (i) the appeal of the first Appellant be DISMISSED, (ii) the appeals of the second and third Appellants against disqualification from holding or obtaining an operator’s licence be ALLOWED to the extent that the disqualification for 7 years is reduced to 5 years, and (iii) the appeal of the second Appellant in relation to his indefinite disqualification as a transport manager is ALLOWED to the extent that he may not apply for the disqualification to be cancelled or varied until he has a new certificate of professional competence as a transport manager.

 

SUBJECT MATTER:- Repute, Financial Standing, Disqualification, Transport Manager

 

 

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

T/2012/17 NCF (Leicester) Ltd

 

 

 

REASONS FOR DECISION

 

 

1.         This is an appeal from the decision of the Traffic Commissioner for the North West of England, who revoked the operator’s licence held by the first Appellant on all the grounds set out in the call-up letter, disqualified the second and third Appellants from holding or obtaining an operator’s licence for a period of 7 years and disqualified the second Appellant from acting as a transport manager for an indefinite period.

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

(i)               The first Appellant is the holder of a standard national goods vehicle operator’s licence authorising 8 vehicles and 8 trailers.  At the time of the Public Inquiry it had 7 vehicles in possession.  The operator’s licence was granted on 2 October 1997.  The first Appellant’s business is mainly concerned with heavy haulage.

(ii)              The third Appellant, (who is 75 years of age and said to be in poor health), is the father of the second Appellant.  They are the sole directors of the first Appellant.  In addition the second Appellant is the designated transport manager for the first Appellant.

(iii)             The first Appellant attended a Public Inquiry in October 2002, which was adjourned to April 2004.  The Traffic Commissioner acknowledged that she was aware of both matters, (reference was made to them in a call up letter dated 12 June 2009), but expressly stated in her decision that she would disregard the evidence in relation to them.

(iv)            On 20 July 2007 the first Appellant was sent a warning letter following an unsatisfactory maintenance investigation.  The first Appellant was warned that: “should further reports of an adverse nature be received the contents of this letter will be taken into account”.  The first Appellant was warned to expect a further maintenance assessment in 6 months time.

(v)             On 10 July 2009, at the conclusion of a Public Inquiry at which matters arising under ss. 26 and 27 of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"], had been in issue, the Traffic Commissioner curtailed the first Appellant’s authorisation from 10 vehicles and 10 trailers to 8 vehicles and 8 trailers.  The curtailment was for an indefinite period and had immediate effect.  It resulted from findings in relation to convictions of the first Appellant and its servants or agents, prohibition notices being issued and failure to fulfil statements of intent and undertakings.

(vi)            Between 9 January 2008 and 5 May 2010 the first Appellant received 4 fixed penalty notices for failing to produce tachograph charts.

(vii)           Between 9 January 2008 and 13 June 2013 the first Appellant received 26 immediate prohibitions and 27 delayed prohibitions, of which 5 were ‘S’ marked to indicate a significant failure in the maintenance systems.  Many of the prohibitions were for serious defects and a large number indicated that the first Appellant was not maintaining its fleet to the required standard.  The prohibition rate for vehicles over this five year period was just below the national average, while that for trailers was very significantly worse.

(viii)          On 24 August 2012 the first Appellant was placed into creditors voluntary administration, (“CVA”).

(ix)            On 7 November 2012 Traffic Examiner Batten inspected one of the first Appellant’s vehicles, which was pulling a Grafton plant trailer, loaded with three small tracked excavators.  The vehicle was not travelling under a special types movement order.  It did not have a Ministry plate, nor did it have a goods vehicle test identification disc fitted.  The driver explained that because of its width it did not require testing and had, in fact, never been tested.  Further inquiries revealed that the trailer was classed as a ‘special types trailer’ because it’s width exceeded 2.55 metres but that such a trailer could only be used to carry a single indivisible load.  The Traffic Examiner took the view that the load of three tracked excavators was not a single indivisible load and that it should have been carried on a plated and tested trailer.  On 6 December 2013 the second Appellant was interviewed about this incident.  He said that he was not aware, until then, that the trailer had been used to carry three tracked excavators.  He maintained that a special types load did not have to be truly indivisible where the load consisted of engineering plant but he accepted that the vehicle was not operating under a special types order and that no movement order was in place.

(x)             On 30 January 2013 Senior Traffic Examiner Parrish informed the first Appellant that no further action would be taken in relation to the incident on 7 November 2012, though a record would be kept on file and would be taken into account if there was any further failure to comply with the relevant road traffic regulations.  The Traffic Commissioner took the view that this put the first Appellant on notice as to the need for future compliance.

(xi)            On 27 June 2013 Acting Sergeant Arnold of Merseyside Police was on duty in Dunningsbridge Road, Aintree, Liverpool.  Traffic was moderate to heavy and the road was wet because it was raining heavily. He saw vehicle number PN57 AZX, operated by the first Appellant, which was carrying a single abnormal load in the form of a piece of plant type machinery.  As the vehicle approached the traffic lights at the junction with Park Road the load appeared to slip and fall from the vehicle towards the nearside.  This happened close to a pedestrian footpath and an over-bridge.  The Acting Sergeant took immediate steps to cordon off the area.  Having done so he spoke to the driver and pointed out the offences of using the vehicle with an insecure load and using the vehicle with a dangerous load.  The driver made no reply save to say that he had loaded the vehicle.  The officer inspected the vehicle and concluded that the load had been inadequately secured on the nearside. It proved impossible to secure the load adequately at the scene so the vehicle required a Police escort to the first Appellant’s operating centre in Heysham Road, Aintree.  The incident caused severe disruption to traffic in the area.

(xii)           On 8 July 2013 a traffic accident occurred on the A5103 Princess Parkway near the junction with Wythenshawe Road, Manchester.  The evidence of PC Bennett was that: “The incident involved an abnormal load being carried on a Volvo FH16 articulated large goods vehicle and a number of cars.  As a result of the collision the female driver of a car sustained serious injuries”.  The Volvo was one of the vehicles authorised under the operator’s licence held by the first Appellant.  It was towing a Grafton trailer loaded with a Doosan 225 tracked excavator.  It was operating under the provision of the Road Vehicles (Authorisation of Special Types) (General) Order 2003.  The collision was the subject of a separate Police Inquiry, with a view to a prosecution, but, by the date of the Public Inquiry that inquiry was not complete.  Tachograph information was downloaded from the card used by the driver of the Volvo

(xiii)          Following this accident a maintenance investigation was carried out on 9 and 13 July 2013.  Four vehicles and 8 trailers were examined. Two prohibitions, (one immediate and one delayed), were issued in relation to vehicles and four immediate and four delayed prohibitions were issued in relation to trailers.  Two of these prohibitions were ‘S’ marked.  One of the prohibitions was issued because the clevis pin was missing from a brake lever, which rendered the brake inoperative.  Two further prohibitions had been issued following the accident on 8 July 2013.  The outcome of this investigation was unsatisfactory because: (i) inspection records were not complete, (ii) inspections were not at agreed intervals, (iii) the driver defect system was not being used satisfactorily, (iv) there were inadequate facilities for the fleet operated and (v) as indicated prohibitions had been issued.

(xiv)         On 13 July 2013 digital tachograph information was downloaded from the digital tachograph files relating to several of the authorised vehicles and from digital tachograph cards used by several of the Appellant’s drivers.  When this information was analysed by PC Bennett it was found that vehicles were driven without a driver card being inserted for limited periods.  In addition there were 152 apparent infringements, though it was recognised that for various reasons it might be appropriate to disregard some of them.  Of the ‘un-edited’ list of infringements 35 were in the ‘most serious’ category, 13 were in the ‘serious’ category and 99 were minor.  In an email dated 30 September 2013 PC Bennett said that the section in the summary highlighting 35 ‘most serious infringements’ was wrong and should have referred to 35 very serious infringements.  

(xv)          On 19 July 2013 a Memo was circulated to the first Appellant’s drivers.  This provided detailed instructions for carrying out ‘walk-round’ checks and for completing driver defect report forms.  It also referred to other matters including load safety and wheel and wheel nut security.

(xvi)         On 24 July 2013 the first Appellant submitted its response to the maintenance investigation.  It provided explanations for some aspects of the maintenance investigation report while other aspects were accepted, with an indication as to how the relevant system was to be improved.

(xvii)        On 20 August 2013 the first Appellant was called to a Public Inquiry, which was to be held on 24 September 2013.  The letter warned the first Appellant that the Traffic Commissioner was considering action under s. 26(1) of the 1995 Act: (i) because Prohibitions had been issued, (ii) because of false statements of fact or expectation made for the purpose of the application, and (iii) because undertakings recorded on the licence had not been fulfilled.  In addition it indicated that the Traffic Commissioner was considering action under s. 27(1) of the 1995 Act on the ground that the first Appellant might no longer meet the requirement: (i) to be of good repute, (ii) to be of appropriate financial standing or (iii) to be professionally competent and/or (iv) that it no longer had a transport manager who was of good repute and professionally competent.  The letter went on to provide a detailed summary of the material, which the Traffic Commissioner would take into account.  The letter warned that if the operator’s licence held by the first Appellant were to be revoked the Traffic Commissioner would have the power to disqualify the second and third Appellants, as directors of the company.  Finally the letter required the first Appellant to provide information to confirm that it had appropriate financial standing and information concerning its maintenance system and its system for ensuring compliance with drivers’ hours and tachograph legislation.

(xviii)       On 20 August 2013 the second Appellant was called to the same Public Inquiry in his capacity as the nominated transport manager for the first Appellant.  The letter warned him that the Traffic Commissioner would consider whether he fulfilled the requirements to be of good repute and professionally competent.  It went on to state that disqualification from acting as a transport manager was mandatory if the second Appellant was found no longer to be of good repute or professionally competent in his capacity as transport manager.  The letter provided a detailed summary of the material that the Traffic Commissioner proposed to take into account.

(xix)         On 2 September 2013 Acting Sergeant Arnold was on duty at the VOSA Check Site at Switch Island, Aintree, Liverpool.  At 0900 hours a Volvo articulated unit, operated by the first Appellant, carrying a large piece of plant equipment, was brought in for inspection.  The vehicle measured 3.6m in width and given its size the first Appellant was required to notify the Police of the movement of the vehicle.  If sufficient notification is given and the operator complies with any standard conditions made by the Police the movement will be exempt from the requirements of the Road Vehicles (Construction and Use) Regulations.  One of the standard conditions imposed by Merseyside Police is that no movement of an Abnormal Indivisible Load Vehicle, (“AILV”), can take place between 0730 hours and 0930 hours.  Since the vehicle was being driven at 0900 it was not complying with that condition.

(xx)          Having inspected the Volvo on 2 September 2013 Acting Sergeant Arnold examined the drivers digital tachograph card.  He found that he had committed an offence on 23 August 2013 by driving for four hours and fifty-eight minutes without taking a rest break.  When questioned about this the driver replied: “I went past Charnock Richard and couldn’t find anywhere else”.  The driver was issued with two graduated fixed penalty notices.

(xxi)         On 6 September 2013 the Office of the Traffic Commissioner (“OTC”), wrote to the first Appellant to warn it that in addition to the material referred to in the original call up letter the Traffic Commissioner would also take into account evidence relating to the incident on 27 June 2013.

(xxii)        On 6 September 2013 Vehicle Examiner Cook was requested to attend the scene of an accident at the roundabout at the end of the Knowsley Expressway.  When he arrived he found a Volvo FH heavy goods vehicle, PN57 AXB, operated by the first Appellant, towing a Grafton trailer.  It appeared that on arrival at the roundabout the load on the trailer slid off onto the carriageway damaging a barrier.  As he arrived at the scene the Vehicle Examiner found two parts of a ratchet strap, about 100 feet before the roundabout.  The main section was draped over the central reservation barrier, while a smaller section was in the outside lane of the carriageway.  Inspection revealed that the strap had been severed.  Save for long-standing damage to the outer tyre on the first axle of the trailer, which exposed the ply cords, there was no sign of any mechanical defects.  An inspection of the methods used to secure the load revealed other ratchet straps, which were severed at about the same point as the one found in the carriageway.  However it was not possible to determine what method had been used because chains, straps and wooden blocks appeared to have been collected and left on the bed of the trailer.  A prohibition notice was issued in relation to the security of the load and an inspection notice was issued in relation to the tyre.

(xxiii)       On 17 and 18 September 2013 the Office of the Traffic Commissioner (“OTC”), wrote to the first and second Appellants to warn them that in addition to the material referred to in the original call up letter the Traffic Commissioner would also take into account evidence relating to the incidents on 2 and 6 September 2013.

(xxiv)       On 22 September 2013 Grahame Robinson a retired Police Officer and transport consultant submitted a preliminary report on behalf of the Appellants.  He was sent the documentation in relation to the Public Inquiry on 17 September 2013 and visited the premises of the first Appellant and met the second Appellant on 21 September 2013.  In relation to maintenance he conceded that there had been a very high number of prohibitions, but pointed that that the first time pass rate for MOT tests on vehicles was 100%, (trailers were exempt from MOT tests).  Mr Robinson suggested that the number of prohibitions could be reduced by reducing the inspection frequency for trailers to four weeks and by carrying out voluntary roller brake tests every 12 weeks.  He added that he had provided a VOR, (vehicle off road), notice to be placed on the file for a vehicle or trailer in order to explain extended inspection frequencies.  In relation to possible tachograph offences Mr Robinson said that his examination had resulted in discounting a further 77 infringements, leaving 69 outstanding.

(xxv)        An undated and unsigned document was put before the Traffic Commissioner at the Public Inquiry. It set out the history and background of the first Appellant, its management structure and facilities.  It then provided a more detailed account of various aspects of the inspection, maintenance and training systems used by the first Appellant.  It ended by referring to the on-going Police investigation into the accident on 8 July 2013 and the appointment of Mr Robinson with a view to making changes to reduce the number of prohibitions being issued.  A separate section of this document dealt with financial matters and the reasons for entering a Creditors Voluntary Arrangement on 25 August 2012.

(xxvi)       On 24 September 2013 the Public Inquiry commenced before the Traffic Commissioner.  Mr Woolfall appeared for all the Appellants at the Public Inquiry.  The second Appellant and Mr Robinson were present on behalf of the company, Vehicle Examiners Cook and Garlick and Senior Vehicle Examiner McCalla were present for VOSA and several Police Officers were present either as witnesses or, in one case, as an observer for Merseyside Police.

(xxvii)      After some preliminary discussion the Traffic Commissioner heard financial evidence in chambers.  It was accepted that the average bank balance was insufficient for the number of vehicles authorised.  Mr Woolfall requested a period of grace in which to show that the value of surplus assets was sufficient to establish appropriate financial standing.

(xxviii)     When the private discussion about finance had finished Vehicle Examiner Garlick gave evidence.  He adopted his report, which has been summarised at paragraph 2(xiii) above.  In cross-examination the Vehicle Examiner accepted that he had had no previous dealings with the Appellants.  He said that he had been requested to conduct the maintenance investigation because he had attended the scene of the accident on 8 July 2013.  He accepted that the prohibition rate for vehicles was in line with or just below the national average and that the MOT rates for vehicles were very good, but that the problem lay with the trailers.  He agreed that reducing the inspection frequency for trailers to four weekly would “quite possibly” result in a substantial improvement.  However he added that if it was known that the trailers worked in a harsh environment and picked up damage from contact with the ground he would have expected the operator and the maintenance staff to have been inspecting them more frequently in any event.  When pressed about this he agreed that there were examples of a vehicle or trailer having been passed as clear one day but having picked up a prohibition within 2 or 3 days thereafter he added: “…but, as I have said the operator should be or would be mindful of this…”.  He stated that since the maintenance investigation 7 vehicles had had encounters with VOSA but no prohibitions had been issued, which showed that there had been an improvement.

(xxix)       Various possible improvements were discussed at this stage in what appears to have been a discussion in which the Traffic Commissioner, Mr Woolfall and the first Appellant were the principal participants.  These included a roof over the inspection pit, refresher training for drivers and fitters and independent audits of fitters and compliance.  It is not clear to what extent the Vehicle Examiner took part in this discussion but he agreed towards the end that on the face of it things appeared to be getting better and that time would tell if the proposals being put forward would result in further improvement.

(xxx)        In cross-examination by the Traffic Commissioner the Vehicle Examiner was asked about the accident on 8 July 2013.  By this stage it had been agreed that in view of the on-going criminal investigation it was not appropriate to attempt to investigate who was to blame for the accident.  The Vehicle Examiner said that he was called to the scene after the accident had happened.  When he arrived it appeared to him that the Volvo PN57 AZX, and its trailer, had collided with four cars.  He was then more specific saying that the Volvo had collided with a Rover 25 and that three other vehicles were involved.  He made it clear that he was unable to describe the circumstances of the accident.

(xxxi)       In relation to the defect reporting system the Vehicle Examiner explained that his understanding was that a defect book was not being used.  He said that the maintenance contractor had told him that defects were notified to them by telephone or email and then recoded on the job card.  His view was that the system was not satisfactory.

(xxxii)      In relation to excessive intervals between safety inspections the Vehicle Examiner accepted that one explanation, which had been given, was that the vehicle in question had been off the road.  He pointed out that in the case of PN6 OPW, where the appropriate ‘off the road’ notice had been given, the vehicle had been put back on the road the day after the accident and without a safety inspection.

(xxxiii)     The Vehicle Examiner then referred to the photographs to explain a number of defects including the brake valve secured by cable ties, an incorrectly re-cut tyre, the missing clevis pin and an impermissible welded repair of a steering component.

(xxxiv)    PC Bennett gave evidence.  He adopted his statement, which has been summarised above.  He then explained that it appeared when information was downloaded from the tachographs that downloading had not taken place for between 525 and 540 days.  The officer then went on to give the precise figure vehicle by vehicle.  He accepted that downloading of drivers’ cards might have occurred, without that fact being recorded, depending on the software that had been used. However he was satisfied that information from the vehicles had not been downloaded because the information would have been recorded on the tachograph head.

(xxxv)     He said that when the information was analysed the programme was set up with no tolerances in order that every infringement was identified but that that, in turn, meant that EU guidance and tolerances and an element of discretion had to be applied to eliminate apparent infringements that were irrelevant.  He also accepted that the precise seriousness of some of the infringements required more detailed analysis than he had been able to perform.  He gave some further detail about the two ‘most serious infringements’ to illustrate how further investigation might lead to a different conclusion.

(xxxvi)    Acting Sergeant Arnold then gave evidence.  He adopted his statement, which has been summarised above.

(xxxvii)   Immediately before the second Appellant gave evidence there was a brief discussion as to why the third Appellant was not present at the Public Inquiry.  The second Appellant said that he was abroad on a holiday paid for by friends to celebrate his 55^th wedding anniversary.  He added that the third Appellant was retired, that he had retired in about 2009 about the time of the previous Public Inquiry but that ‘unofficially’ he still did ‘bits and pieces’ and remained a Director of the company.

(xxxviii)  The second Appellant began his evidence by adopting the undated report and appendices, (summarised at paragraph (xxv) above), as the evidence of the first Appellant.  Asked to explain why the third Appellant remained a director of the first Appellant he replied: “It’s possibly just to make him feel as though he’s still wanted and he’s still got a role in life”.  The second Appellant went on to explain that his father had become quite upset when asked, at the time of his 65^th birthday, whether he would be retiring and that they had reached a ‘gentleman’s agreement’ that if the second Appellant needed the third Appellant to do something he would come in and do it, but that he was not expected to be present on a day to day basis.  The second Appellant went on to explain that his father was not paid but continued to own shares though he had no actual involvement in the business.  At this point the Traffic Commissioner commented: “He is not fulfilling his responsibilities as a director, is he, Mr Woolfall”.  Mr Woolfall accepted that that was a possible conclusion.

(xxxix)    The second Appellant then explained his role as Transport Manager.  He said that he oversaw the day to day running of the business and liaised directly with the drivers if they needed support.  He described the position of two people in the traffic department one of whom dealt with notification and routing of abnormal loads and the other of whom, Mr Don Nelson, could possibly be deemed deputy transport manager.  He said that each of them was a CPC holder.  He added that vehicle maintenance was scheduled through a planner on the wall and that both the traffic department and the workshops worked to it.

(xl)            When he was asked about tachographs and drivers’ hours the second Appellant said that he had delegated this to Don Nelson.  A little later he said that he had understood that the vehicle tachograph units were being downloaded but he accepted that it now appeared that this was not the case.  He added that the system had been changed and that there was a planner in place for downloading information relating to drivers and vehicles.  He said that once downloaded the data was sent to tachograph analysis consultants, who would produce reports about infringements, which went to Mr Nelson.  He accepted that he had not checked these reports and that he had later found that Mr Nelson did not like confrontation and had not followed up infringements with drivers.  He added that drivers had had training when the first Appellant first changed from analogue tachographs to digital.

(xli)           The second Appellant explained that the nature of the business involved collecting and delivering a lot of plant and machinery at quarries, demolition sites and house building projects.  He said that the trailers were very low to the ground, with the result that the suspension, axles and other parts were vulnerable.  He explained that in order to avoid damage to tarmac or concrete it was often necessary to park the trailer on the site in order to load or off-load the plant or machinery.

(xlii)          In relation to the maintenance of trailers the second Appellant was asked why this could not be contracted out.  He explained that this had been tried but that they had found that local contractors could not deal with them.  He said that this was because the trailers had hydraulic systems for ramps and power steering and complicated wiring which fitters working for an outside contractor didn’t understand.  He added that it was better to use the staff who built the trailers to maintain, repair and rebuild them.

(xliii)         The second Appellant explained that, in the past, defect books had not recorded all defects.  He said that when a defect occurred which meant that the vehicle could not be moved it would be repaired and the drivers would assume that no entry was needed.  He said that this had since been corrected.  He explained that the procedure for notifying the Volvo agent of defects had also been changed so that once a repair had been effected Volvo returned the defect notice and the PMI sheet so that the two could be cross-referenced.  He added that drivers had received training in conducting walk round checks.  He said that he checked vehicles for defects at week-ends.

(xliv)        The second Appellant was asked why there were long gaps in the files for some of the trailers during which inspections and maintenance had, apparently, not taken place.  He explained that some of the trailers were very specialist and might not be used for long periods of time.  Trailers could be left on site either loaded or waiting to load.  He said that in this situation the vehicle would not be inspected until it was needed.

(xlv)         In relation to the large number of prohibition notices the second Appellant said that most related to the consequences of having to work off road.  He said that some of them could have happened within hours of the prohibition being issued.  In relation to the ‘S’ marked prohibitions he said that they would never, knowingly, recut a tyre to a different pattern so he was surprised that this had happened.  In relation to the clevis pin he said that substantial repairs had been carried out on the axle.  He suggested that when the clevis pin had been refitted the split pin, holding it in place, had either fractured, because it had been over-bent or had fallen out because the split pin had not been bent sufficiently.  In relation to the valve, which was held in place by cable ties, he said that the trailer had been on site for a long period and this was simply a temporary measure pending a proper repair.

(xlvi)        The second Appellant explained that drivers had received training on loading and securing the type of plant and machinery carried by the first Appellant’s vehicles.  He said that he had not had an opportunity to investigate the incident on 27 June 2013 because the driver, on that occasion, was the driver involved in the accident on 8 July 2013.  The second Appellant explained that the driver took two weeks off and that in a ‘back to work interview’ on his return he got very upset and didn’t really answer questions about the insecure load or the accident.  He said that disciplinary action was pending.  In relation to the insecure load on 27 June the first Appellant expressed his own opinion as to the cause, namely that there were no timber baulks underneath the front of the machine, the hydraulic legs were not down correctly and pins were not installed with the result that under heavy braking the machine being transported ‘nosedived’.  In relation to the incident on 6 September 2013 the second Appellant said that he had had interviewed the driver on the day before the hearing and that action was to be taken against him.

(xlvii)       When the second Appellant was asked about the requirement that, as transport manager, he was required to continuously and effectively manage the transport operations of the first Appellant he accepted that he had probably considered that his staff were much more responsible than was the case and that he had given them too much responsibility.  He said that the office staff did not wish to be confrontational with the drivers but that he had explained to them that if they did not make them improve they would lose their own jobs as a result of the loss of the operator’s licence.

(xlviii)      When questioned by the Traffic Commissioner the second Appellant was asked about the similar problems and similar explanations and promises that had been made at the Public Inquiry in 2009.  When asked specifically about defects in the ABS/EBS braking system the second Appellant explained that, in addition to brakes, the vehicles had retarders, which were operated separately.  He said that it had been found that when the retarders were used to slow the vehicle without also using the brakes the ABS/EBS system identified it as a fault.

(xlix)        The Traffic Commissioner then asked about the maintenance investigation on 13 July when eight prohibitions were issued in relation to trailers and two in relation to vehicles.  The second Appellant agreed that it was an unannounced investigation but accepted that he thought there would be an investigation following the accident on 8 July 2013.  He said that he did not check the vehicles because he thought that most of them would be roadworthy.  He was then asked about his knowledge of the first Appellant’s prohibition history.  It took several questions to get to the point but in the end he accepted that he became aware of the prohibition history “then” and that before the accident he: “didn’t think it was as bad as it transpires”.  He denied ‘sticking his head in the sand’ saying that he relied on other people but agreed that the buck stopped with him.  He was asked a number of questions about specific prohibitions notices.

(l)               The Traffic Commissioner then turned to the question of training.  It became clear that not much had been done in relation to driver CPC training and the Traffic Commissioner pointed out that there was only a year left in which to complete it.  She then asked the second Appellant about his intention to obtain an International CPC.  She began with a number of questions about drivers’ hours, not all of which the second Appellant was able to answer correctly.  The Traffic Commissioner summed up the position by saying this: “Your business is falling apart around your ears potentially and you want to spend January going on an international CPC so that in five years time you can run internationally and you do not know the basic drivers’ hours rules”.  The second Appellant accepted that he needed to refresh his memory about “the basic drivers’ hours rules” adding: “as I say, Mr Nelson dealt with that…”.  The Traffic Commissioner intervened to point out that Mr Nelson was not on the licence as the transport manager.  A little later the second Appellant accepted that he had not been doing the job of transport manager: “to its fullest extent” but said that: “we’ve changed things at lot”.  The Traffic Commissioner asked why the second Appellant had not learned these lessons from the 2009 Public Inquiry.  The second Appellant said that he thought that he had, though he accepted that: “the evidence states otherwise”.

(li)              The Traffic Commissioner asked the second Appellant why he had left it so late to deal with the various problems.  In particular she pointed out that the call-up letter was dated 20 August 2013.  When the second Appellant said that he went on holiday the Traffic Commissioner said: “I bet you did not think of cancelling your holiday did you”?  The second Appellant replied that he could not do so because his son was representing Great Britain at trampolining, at an event held in Portugal, and that attendance at this event was combined with a family holiday.  He added that he was away about 16 days.  The second Appellant began to provide more detail but he was interrupted by a lengthy comment from the Traffic Commissioner.  The exchanges continued:

“Q.  And you are trying to tell me that you had to go on that because of your son’s trampolining but in fact it was a two week family holiday.  Do not try to mislead me, Mr Northover.

A.  There was a five day period before-

Q.  Yes but do not try to mislead me.

A  - I started driving round in Portugal dropping him off at gyms and picking him up-

Q.  Do not try to mislead me. …”

(lii)             The Traffic Commissioner then asked about the absence of downloads for the tachographs in the vehicles.  The second Appellant said that he did not know that the vehicle units had never been downloaded because he was never told that Mr Nelson, who should have done it, had not done so.  He accepted that 525 days was a very long time during which he, as transport manager, never asked for vehicle downloads.  The Traffic Commissioner made the point that this was hardly: “continuous and effective management” to which the second Appellant replied: “No.  Unfortunately I delegated it and it’s come back on me”.

(liii)            At this point the Public Inquiry was adjourned until 4 October 2013, (subsequently changed to 11 October 2013).  The Traffic Commissioner ended by saying: “In the meantime the operator is well advised to do three things: (1) reflect on how this Public Inquiry has gone, (2) produce as much evidence to me as you can that you think will assist your case and (3) be under no illusion that this is a case, Mr Northover, where I am considering all options including revocation”.

(liv)           On 8 October 2013 Mr Robinson submitted an addendum to his report.  This said that all tachograph charts and driver data cards had been analysed up to date and a letter setting out all the infringements found had been sent to each driver concerned.  The addendum also set out the amount of time spent by the second Appellant and each driver on driver CPC courses as well as other steps taken to train fitters and to check the roadworthiness of vehicles and trailers.

(lv)            The Public Inquiry re-convened on 11 October 2013.  In the course of a number of preliminary matters the Traffic Commissioner referred to an email from PC Bennett in which he corrected the summary in his report so that the reference to 35 most serious infringements was changed to 35 very serious infringements.  She also said, in response to a suggestion that PC Bennett should update her in private about the collision on 8 July 2013: “…I am not taking the serious collision into account at this stage…”.

(lvi)           The second Appellant was then re-called.  He said that having learnt that Mr Nelson was not downloading information from tachographs he had instigated a planner to record the frequency with which information was downloaded and tachograph charts were collected.  The target being to do so fortnightly.  He said that he had attended a driver CPC course covering drivers’ hours, tachographs, safety and secure loading and a second course on managing operator licencing.  He said that the drivers had also had further training concerning walk round checks, loading and securing and on digital tachographs.  He added that the drivers’ handbook had been reissued on the previous Saturday, with alterations to take account of lessons learnt over the previous few months.  He said that training was planned for the fitters in November 2013.

(lvii)          The second Appellant indicated that if the licence was allowed to continue he was prepared to give a number of undertakings on behalf of the first Appellant.  These were: (a) four weekly inspections of trailers, (b) training for fitters, (c) six monthly random audits of vehicles and trailers, (d) operator’s licensing compliance audits, initially quarterly but once satisfactory six monthly and (e) documented weekly checks.

(lviii)         The Traffic Commissioner began by asking the second Appellant about the tachograph analysis done for the company.  He accepted that he had not looked at it saying that he had delegated it to one of the managers, (at first he said: “one of my transport managers”), Don Nelson.  He agreed that he had not asked for updates but he said that he would have thought that any problems would have been drawn attention to his attention.  Instead he said that he had assumed that because of the nature of the work that the first Appellant undertook there would not normally be a great number of infringements.  He agreed that the tachograph analysis presented a different picture and said: “we seem to pick up a lot of infringements”.  As a result he said that they had retrained everybody.  He said that he had read the analysis and discussed it with individual drivers but accepted that he had not annotated the individual breaches to record the explanation he had been given.  The Traffic Commissioner went on to ask about a number of specific instances, including occasions on which the second Appellant apparently committed offences.  She ended by saying: “What do you say to me about your repute”?  The second Appellant replied: “It doesn’t look good at the moment”.  He volunteered that the rules were to stop people offending, to avoid accidents and to keep the roads safe and he accepted that as transport manager and a director of the first Appellant he was not doing enough to prevent this.

(lix)           The Traffic Commissioner then asked the Vehicle Examiner about his examination of the safety inspection records.  He said that one problem was that safety inspection sheets appeared to be used as job cards, which complicated matters when they were examined.  The Traffic Commissioner then asked the second Appellant about the records for PN57 AXB.  He agreed that at the bottom of the inspection sheet for 27 July 2013 it stated that the next inspection was due on 9 September 2013.  The Traffic Commissioner pointed out that the next inspection sheet was dated 14 September 2013 but signed off on 22 September 2013.  The second Appellant replied that the contractors had telephoned him to say that they were unable to inspect it that week, due to lack of staff.  They asked if it could go back a week and, when asked, informed the second Appellant that it was “still in service”.  The second Appellant explained that he was not in the office and that the contractor had the planner available at the time.  When the Traffic Commissioner suggested that he was once again blaming someone else the second Appellant said that he was not and accepted that it was his mistake.  He accepted that a competent transport manager would have established when the six week period expired and would have kept the vehicle off the road, if necessary.  In answer to further questions from the Traffic Commissioner he said that the vehicle would have been working between 14 and 22 September 2013 and that he would have given permission on the basis that the vehicle was still within the six week period.

(lx)            When the Traffic Commissioner asked about the third Appellant the second Appellant explained that he had been unable to attend for medical reasons.

(lxi)           The Traffic Commissioner then dealt with financial evidence in closed session.  It was accepted that the first Appellant needed to show that £35,200 was available in order to meet the requirement to be of appropriate financial standing.  It was also accepted that the average bank balance and the average available through a factoring agreement provided insufficient to satisfy that requirement.  One way in which Mr Woolfall suggested that the amount required to be available could be met was through selling assets, which were not being used for the purposes of the business.  Mr Woolfall provided a valuation of the assets in question.  The Traffic Commissioner asked why surplus assets had not already been sold.  Mr Woolfall replied that one trailer had been put up for auction but with a high reserve so it did not sell.  Mr Woolfall went on to explain that arrangements had been made for two trailers to be sent for auction at the end of October 2013 and for the proceeds to be placed in a ring-fenced account, with the approval of the administrator of the CVA.  After a lengthy discussion as to the practical arrangements for auctioning surplus assets the Traffic Commissioner said: “Well you are wanting a period of grace are you not”?  Mr Woolfall agreed that he was and the Traffic Commissioner said: “What about the fact that this company has not had the money for ages”?  Mr Woolfall sought to argue that this was not necessarily the case and asked for a period of grace until mid December 2013.

(lxii)          Mr Woolfall submitted that when the various changes and improvements were taken into account this was not a case where it would be proportionate to conclude either that the first Appellant was not longer of good repute or that the second Appellant had lost his good repute as the transport manager.  In the course of these submissions the Traffic Commissioner made a remark to the effect that the second Appellant: “was finding it hard because he had to take his son or daughter trampolining”.  The second Appellant intervened to indicate that this was not what he had said.  The exchanges continued for over half a page.  Towards the end the Traffic Commissioner suggested that the competition attended by the second Appellant’s son lasted 3 days and that the holiday was two weeks.  When the second Appellant attempted to explain that his son had to train before the competition the Traffic Commissioner cut the explanation short saying: “You really do try pulling the wool, do you not, Mr Northover, this is what I find difficult with you”.  In response the second Appellant managed to say: “I” before the Traffic Commissioner again intervened.  She ended a lengthy intervention by saying: “You know it is a foolish operator that sits there and tries to mislead me and you tried to have me think that you were in Portugal or Spain or wherever the heck you were, I will look back over my notes, purely for the purpose of taking your son to compete in a trampolining exhibition.  It turns out that for the majority of the time you were on a family holiday”.  Shortly after this the Traffic Commissioner apologised for intervening and told Mr Woolfall to: “carry on”.  He managed ten lines in the transcript before a further intervention from the Traffic Commissioner invited the second Appellant to give further evidence about the driver CPC and ‘O’ Licence courses.

(lxiii)         Mr Woolfall addressed the Traffic Commissioner about the various options open to her.  He submitted that it was not necessary to make a finding that the first Appellant was not longer of good repute.  He suggested that the business would be able to cope with a short period of suspension but the Traffic Commissioner rejected that idea.  Together with the second Appellant he explained that any curtailment below 6 vehicles would render the business uneconomic.  In relation to disqualification, should that possibility arise he submitted that it was not necessary in the case of the third Appellant because, at the age of 75, he was effectively retired and played no day to day role in the business and had not done so for some time.  In relation to the second Appellant he submitted that given the hard work he had done to bring himself up to date he should not be disqualified so the door could be left open for him to return to the business.

(lxiv)        The Traffic Commissioner gave a written decision dated 30 December 2013.  She set out the background and the evidence, which we have summarised above.  In relation to the incident which occurred on 8 July 2013, (paragraph 2(xii) above), the Traffic Commissioner repeated on several occasions that she would not be taking the facts of this incident into account, in view of the outstanding Police investigation.  Nevertheless she said this at paragraph 15 of her decision: “…I understand that the brief facts are that all or part of a load being carried slid onto a car resulting in the female driver sustaining life threatening injuries”.  In paragraph 21 of her decision she set out the summary of the infringements resulting from the tachograph investigation.  She stated that there were 35 most serious infringements, without referring to the fact that this was subsequently changed, (see paragraph 2(lv) above) to 35 very serious infringements.

(lxv)         Having reviewed the evidence the Traffic Commissioner set out her findings of fact in 20 sub-paragraphs.  Many of the findings simply restate parts of the evidence as to which there was little or no dispute. Others are of greater significance.  For example in relation to the incident on 27 June 2013 the Traffic Commissioner concluded that the second Appellant had failed to take appropriate action to prevent the load being insecure in the first place and that he failed to conduct a proper inquiry after the incident to prevent a recurrence.  In relation to the incident on 8 July 2013 the Traffic Commissioner found that the second Appellant had not put proper systems in place, following the incident on 27 June 2013 to prevent a recurrence. In relation to the maintenance investigation the Traffic Commissioner said that she found the evidence of the Vehicle Examiner truly shocking.  She referred to the assurances given by the second Appellant in response to the maintenance investigation saying that at the Public Inquiry she had not been shown any evidence of the assurances being put into action.  She found that they: “were just empty words”.  In relation to the second Appellant she concluded that he had failed in his duties as a director of a company holding an operator’s licence and that he had completely failed in his duties as the nominated transport manager.  In addition she found that he had failed to accept or to recognise his own failings instead preferring to blame anyone but himself.  The Traffic Commissioner went on to find that the second Appellant had made exactly the same promises in 2013 as he had in 2009 and that he had failed to carry them out.

(lxvi)        In relation to the issue of good repute that Traffic Commissioner first considered how likely it was that the first Appellant would be compliant in the future and then whether the conduct of the Appellant was such that the first Appellant ought to be put out of business.  In relation to the first question the Traffic Commissioner felt sure that the first Appellant, through its directors and transport manager would not comply with the operator licensing regime.  She set out a series of reasons for reaching that conclusion.  In relation to the second question the Traffic Commissioner pointed out that as the business of the first Appellant involved an extremely high degree of risk compliance with the regulatory regime should be extremely robust.  She went on to conclude that as compliance by the first Appellant had been neither robust nor effective road safety had been compromised to an unacceptable extent on several occasions.  She went on to find that if the first Appellant were to be allowed to remain in business road safety would be compromised by some further incident in the future.  On this basis the Traffic Commissioner concluded that the first Appellant was no longer of good repute, with the result that revocation of the operator’s licence was mandatory.

(lxvii)       In addition the Traffic Commissioner held that the first Appellant, on its own admission, was no longer of appropriate financial standing, adding that it had not met that requirement for some time.  She revoked the licence on that ground as well.

(lxviii)      The Traffic Commissioner found that the matters raised in the call-up letter relating to s. 26 of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] were proved and that it was appropriate and proportionate to revoke the licence on that ground as well, because suspension or curtailment were not appropriate in the circumstances.

(lxix)        The Traffic Commissioner then turned to the question of whether it was appropriate to order disqualification.  She concluded that she would be failing in her duty if she did not make an order for disqualification thereby preventing an almost immediate application for a new licence.  She pointed out that each case had to be dealt with on its own facts.  She considered the facts in the present case to be frightening and that they required both the second and the third Appellant to be kept out of the industry for a significant period, which she set at 7 years for each of them.  In reaching that conclusion she referred to the period of non-compliance going back to 2002.  She went on: “I have considered this carefully reminding myself that this is a long period of time but I consider that the conduct is so very serious that any shorter period would not reflect the breaches adequately”.

(lxx)         The Traffic Commissioner then considered the good repute and professional competence of the second Appellant in his capacity as the nominated transport manager for the first Appellant.  She concluded that as he was, effectively, the company all the findings made in relation to him applied equally to him when considering his role as transport manager.  As a result she concluded that he no longer fulfilled the requirements to be of good repute and professionally competent as transport manager.  She disqualified him for an indefinite period from acting as a transport manager in any EU Member State and concluded that there were no rehabilitation measures which could bring about the requisite change in attitude to ensure compliance.

(lxxi)        On 23 January 2014 the Appellants filed a Notice of Appeal.  The grounds of appeal set out a number of assertions under these general headings: (i) errors in recounting the background to the proceedings, (ii) incorrectly recounting key pieces of evidence, (iii) making erroneous findings of fact, (iv) wrongly concluding that the first Appellant was unlikely, in the future, to comply with the regulatory regime, (v) wrongly concluding that the first Appellant was no longer of appropriate financial standing, (vi) imposing 7 year disqualifications on the second and third Appellants, which were excessive and (vii) imposing an indefinite period of disqualification on the second Appellant as transport manager, which was excessive.

(lxxii)       A few days before the hearing Mr James Backhouse provided us with a skeleton arguments for which we are grateful.  In it he made it clear that his firm represented the second and third Appellants but not the first Appellant because it was understood that the first Appellant was likely to go into administration early in the week of 9 June 2014.

3.         At the hearing of the Appeal the second Appellant was present.  He and the third Appellant were both represented by Mr Backhouse. 

4.         The first Appellant was neither present nor represented.  Mr Backhouse told us that the company had gone into administration and that the administrators were aware of the date for the hearing of the appeal.  Given the timescale it is not surprising that the administrators have not contacted the Tribunal to indicate whether they wish to pursue the appeal or withdraw it or whether they require an adjournment.  Partly for this reason but also because revocation is a pre-condition to disqualification we have decided that the appropriate course is to hear and determine the first Appellant’s appeal in its absence.

5.         The first ground of appeal advanced on behalf of the first Appellant asserted that the Traffic Commissioner made a number of errors in recounting the background to the proceedings.  The grounds of appeal were drafted without the benefit of a transcript.  Having had an opportunity to consider them together with all the papers in the case we take the view that none of these criticisms can be sustained.

6.         The second ground of appeal asserts that the Traffic Commissioner incorrectly recounted key pieces of evidence.  The first criticism was that there was no evidence to support the Traffic Commissioner’s description of what happened on 8 July 2014, (see paragraph 2 (lxiv) above).  The second criticism was that the Traffic Commissioner repeated, (see paragraph 2 (lxiv) above), the statement in the summary of PC Bennett’s conclusions that there were 35 ‘most serious’ infringements without making any reference to his correction to the effect that they were ‘very serious’ infringements, (see paragraph 2(lv) above).  The third criticism was that the Traffic Commissioner made reference to the first Appellant ‘only’ having an 88% compliance rate in relation to movement orders for abnormal loads when there was no evidence to establish whether this was above or below the average figure.  In our view these are all valid criticisms.  Having said that however we must point out that they are matters of detail, which, in our view, do not undermine the overall picture presented by the evidence in this case.  The fourth criticism made under this head was that the Traffic Commissioner had failed to acknowledge the concessions made by the Vehicle Examiner and PC Bennett in relation to changes actually made and proposed changes suggested by the second Appellant.  In our view the Traffic Commissioner did take into account the improvements resulting from the changes that had actually been made.  It was for her to decide what weight to give to that part of the evidence.  In relation to proposed changes the critical point, as the ground of appeal acknowledges, is whether they would be properly implemented.  The Traffic Commissioner clearly took the view that based on the past history she could not trust the second Appellant to implement these changes on behalf of the first Appellant.  In our view this was a conclusion that she was entitled to reach.

7.         The third ground of appeal asserts that the Traffic Commissioner made erroneous findings of fact.  Nine instances are relied on.  The first asserts that the Traffic Commissioner was wrong to find that there was a history of non-compliance.  We disagree.  In our view this conclusion is borne out by the evidence.  The second asserts that the Traffic Commissioner gave undue weight to the incident on 7 November 2012.  This is a hopeless ground of appeal since the weight to be given to evidence is a matter for the Traffic Commissioner.  The third point relates to the incident on 27 June.  It is said that the Traffic Commissioner was wrong to state that the vehicle and trailer were in a dangerous condition given that no roadworthiness prohibition was issued.  However it is conceded that the load was insecure and it seems to us to be quite clear that that created a dangerous situation.  In our view this criticism loses sight of the wider picture, which is that no effective steps were taken, after this incident, to learn lessons and to make sure that the same sort of thing did not happen again.  The fourth point repeats the criticism made of the Traffic Commissioner’s findings in relation to the incident on 8 July 2013.  We have already indicated that this is a good point.  However the grounds of appeal go on to criticise the statement that “once again the load was insecure”.  It is not clear from the evidence whether or not this was correct, which is not surprising given that the evidence in relation to this incident was not considered in any detail.  The fifth point was that the Traffic Commissioner’s findings in relation to the tachograph investigation overstated the results because it failed to make allowance for the concession made by PC Bennett to the effect that many apparent infringements would be discounted on further investigation.  Our understanding is that the Traffic Commissioner was alive to this point and that she focussed attention on what appeared to be the worst instances, which were less likely to be discounted.  The sixth point relates to the Traffic Commissioner’s assessment that some photographs “revealed a complete disregard for proper maintenance”.  In our view this was a matter for the Traffic Commissioner and we are not persuaded that we ought to take a different view.  It is important to note that the criticism is based on a partial quotation.  In the same sentence the Traffic Commissioner went on to say “as evidenced by the clevis pin being found on the floor and the brake having had remedial work done but despite this the brake not working at all”.  The seventh point was that the statement by the Traffic Commissioner that she was not “shown any evidence of the assurances being put into action” was too sweeping because in some instances changes had, actually, been made and improvements had resulted.  In our view the fact that the Traffic Commissioner went rather too far with this particular comment cannot disguise the fact that this was a case of an operator doing too little too late and making promises to change and improve which could and should have been implemented long before the Public Inquiry took place.  The eighth point relates to the incident on 6 September 2013 and the statement by the Traffic Commissioner that “the vehicle and trailer were in a dangerous condition”.  While it is conceded that a prohibition was issued for a defect to a tyre it is submitted that there was no evidence that the mechanical condition of the vehicle and trailer was dangerous.  This was another example of a load slipping, fortunately without causing any injury.  While it may be correct that the mechanical condition of the vehicle and trailer was not dangerous it seems to us that the Traffic Commissioner was entitled to regard the overall condition of the vehicle and trailer, when carrying an insecure load, as dangerous.  The ninth point is that the Traffic Commissioner was wrong to conclude that the second Appellant was a man of empty words given that previous undertakings had been fulfilled and that some improvements had been made.  The Traffic Commissioner justified that comment by saying this: “I find as a specific fact that Craig Northover has made exactly the same promises to me in 2013 as he did in 2009 – and that he has failed to carry out those promises”.  In our view the Traffic Commissioner was entitled to come to this conclusion. 

8.         Standing back and taking an overall view of the third ground of appeal it seems to us that while the first Appellant may have succeeded on a number of matters of detail the overall picture remains the same.  However we sense that this ground of appeal was no more than a preliminary point intended to provide part of the foundation for the next ground of appeal.

9.         The fourth ground of appeal asserts that, having regard to the matters set out in the first three grounds the Traffic Commissioner was wrong to conclude that the first Appellant was unlikely in the future to comply with the requirements of the regulatory regime.  Four reasons are given for reaching this conclusion. 

10.      The first reason is that the Traffic Commissioner failed to conduct a proper balancing exercise.  At paragraph 71 of her decision the Traffic Commissioner said that she had conducted the necessary balancing exercise but there is no separate heading under which the favourable and unfavourable factors are weighed up.  It seems to us that all the matters set out under the heading “Findings of Fact” are adverse factors and that there is no recognition under this heading that there were some favourable factors, which ought to have been taken into account.  Much the same applies under the heading “Consideration regarding repute and my discretionary powers”.  In our view simply stating that a balancing exercise has been conducted does not suffice.  Appellants and the Tribunal are entitled to see which factors have been taken into account and they are entitled to know, at least in general terms, why one set of factors outweighs the other.  It follows, in our view, that the Traffic Commissioner erred in failing to identify the favourable factors and in failing to show how the unfavourable outweighed the favourable.

11.      In our view the appropriate course in these circumstances is for the Tribunal to conduct its own balancing exercise.  The adverse factors are those set out in paragraph 73 of the Traffic Commissioner’s decision.  The favourable factors which we have been able to identify are: (i) the prohibition rate for vehicles was at or below the national average, (ii) since the maintenance investigation, in July 2013, the first Appellant’s vehicles and trailers had had seven encounters with VOSA during which no prohibitions had been issued, thereby demonstrating an improvement on the previous position, (iii) Mr Robinson was appointed, (albeit on 17 September 2013), to report on the systems used by the first Appellant and to make recommendations to improve tachograph monitoring, (iv) the second Appellant and the drivers had attended a driver CPC course and the second Appellant had also attended a course on managing operator’s licensing, (v) the second Appellant offered the undertakings set out at paragraph 2 (lvii) above.

12.      In our view when weighing up factors such as these both Traffic Commissioners and the Tribunal are entitled to distinguish between those operators who take the initiative when something has gone wrong and immediately seek to put matters right and those who leave remedial measures to the last minute and/or only adopt them when prompted by others or by the approach of a Public Inquiry.  Operators who can say: “I realised that something went wrong/was not satisfactory.  These are the steps which I took to put matters right.  They appear to have solved the problem”, will put themselves in a stronger position than those who delay or wait to be told what to do.  Operators who fail to take remedial action at the earliest reasonable opportunity and either delay or wait to be told what to do are unlikely to be able to say: “the steps I have taken appear to be working”.  Instead they may have to rely on making promises in circumstances in which they should not be surprised if the Traffic Commissioner has doubts about whether or not they will be carried out.  On this basis it seems to us that full credit can be given for the first two factors identified in the previous paragraph but only limited credit can be given to the remainder.  In the case of the remainder the reason is that they are either too little or too late or both.  In our view the balance in the present case is quite clear in that the unfavourable factors plainly outweigh the favourable.  In our view this is a case where the second Appellant was simply not up to the job of ensuring that the first Appellant operated in compliance with the regulatory regime.  In particular he was either unable or unwilling to fulfil the role of transport manager and, instead, delegated much of this important task.  Furthermore having done so he failed to ensure that those to whom he delegated the task carried it out to the appropriate standard.

13.      The second reason advanced in support of Ground 4 is that the Traffic Commissioner failed to give proper weight to the concessions made by VOSA and the Police Officers as to the systems that had been put in place and the proposals made for the future.  The short answer to this point is that the weight to be attached to the evidence is a matter for the Traffic Commissioner.  Grounds of Appeal that assert that insufficient weight has been given to some of the evidence have no reasonable prospects of success.  The first Appellant had made limited progress towards more compliant operation but placed far too much reliance on promises of future improvement rather than demonstrating that concrete steps had already been taken.

14.      The third reason advanced in support of Ground 4 is that the Traffic Commissioner had failed to acknowledge that previous undertakings had been complied with.  If this reason relates to the two specific undertakings given at the end of the 2009 Public Inquiry it may well be correct but that is a matter which, in our view, can only carry limited weight.  On the other hand if it is intended to go further than this the assertion is incorrect because one of the grounds for taking action in 2009 was that ‘undertakings had not been fulfilled’.  In addition it seems to us that it is quite clear, from the maintenance investigation in July 2013 and from the prohibitions issued since the 2009 Public Inquiry, that in the period after that Public Inquiry the first Appellant was still failing to fulfil the undertaking to keep authorised vehicles and trailers in a fit and serviceable condition.

15.      The fourth reason advanced in support of Ground 4 is that the Traffic Commissioner failed to acknowledge that the main problems encountered by the operator in terms of bad maintenance and insecure loads happened over a relatively short time and that measures proposed by the second Appellant should address those matters.  The Traffic Commissioner clearly took a different and wider view.  She did so for two reasons.  The first was that the problems, when considered overall, were long-standing and dated back to the events giving rise to the Public Inquiry in 2009.  The second was that the proposed solutions were based on promises of future action, which, on the basis of past history, the Traffic Commissioner was not confident that the first and second Appellants would be able to keep.  In our view on the evidence that the Traffic Commissioner accepted she was fully entitled to come to that conclusion.

16.      While there is some substance in one of the reasons put forward in support of Ground 4 when considered as a whole we are not persuaded that “reason and the law impelled” the Traffic Commissioner to take a different view, see paragraph 40 of the decision of the Court of Appeal in the case of Bradley Fold Travel Ltd & Peter Wright –v- Secretary of State for Transport [2010] EWCA Civ 695.  On the contrary our view is that the Traffic Commissioner gave compelling reasons for concluding that it was unlikely that the first Appellant would operate compliantly in the future.  We are satisfied that the Traffic Commissioner was correct when she found that the first Appellant was no longer of good repute.  It follows that revocation was mandatory, given the terms of s. 27(1) of the 1995 Act.

17.      Ground five asserts that the Traffic Commissioner erred in finding that the first Appellant did not satisfy the requirement to be of appropriate financial standing.  In particular it was submitted that the Traffic Commissioner was wrong to reject the proposal to raise capital through the sale of unnecessary and unused plant and equipment.  While it is theoretically possible to use assets to satisfy the requirement to have appropriate financial standing the practical difficulties, explained in paragraphs 18-22 of the decision in T/2012/17 NCF (Leicester) Ltd make it virtually impossible to satisfy the requirement by this route.  In the present case the first Appellant had ample opportunity to turn surplus assets into money but did not do so.  Once again, in our view, “reason and the law” did not impel the Traffic Commissioner to conclude that the first Appellant did have appropriate financial standing.  It follows, in our view, that the Traffic Commissioner was correct to revoke the licence on this ground as well.

18.      For the avoidance of doubt we simply add that, in our view, the Traffic Commissioner was also entitled, in the exercise of her discretion, to revoke the first Appellant’s licence on the grounds advanced under s. 26(1) of the 1995 Act.  It follows, in our view, that the pre-condition for ordering that the second and third Appellants should be disqualified from holding or obtaining an operator’s licence has been met.

19.      Mr Backhouse submitted that, in the circumstances, it was neither necessary nor proportionate to disqualify either the second or the third Appellant.  Alternatively he submitted that disqualification for seven years was too long.  In the case of the second Appellant he made two general points, supporting each of them with detailed submissions.  The two points were, first that the Traffic Commissioner failed to take important parts of the evidence into account and the second was that the nature and number of her interventions meant that the Traffic Commissioner deprived herself of the opportunity to make a fair and objective assessment of the second Appellant and the explanations which he attempted to give.  In relation to the third Appellant Mr Backhouse submitted that given his age, state of health and lack of involvement in the day-to-day management of the first Appellant it was neither appropriate nor necessary to disqualify him.

20.      Before setting out his criticisms of some of the Traffic Commissioner’s comments and findings Mr Backhouse reminded us that the first part of the Public Inquiry took place on 23 September 2013, the second part took place on 11 October 2013 and the decision is dated 30 December 2013.  Mr Backhouse submitted that this could explain some of the matters to which he referred us.  We agree that whatever the reasons, there was an undesirable delay in publishing the decision in the present case.

21.      The first point relied on by Mr Backhouse when submitting that the Traffic Commissioner failed to take important parts of the evidence into account was that at one point when questioning the second Appellant the Traffic Commissioner said: “… the reality is that you are at your umpteenth Public Inquiry”.  He submitted that this comment overstated the evidence, given that the second Appellant was not involved in the 2002 Public Inquiry, and that it was inconsistent with the indication that the Traffic Commissioner intended to disregard the evidence in relation to the 2002 and 2004 Public Inquiries.  Given that the Traffic Commissioner had indicated that she would disregard the evidence of the 2002 and 2004 Public Inquiries, which were, in effect one Public Inquiry adjourned from 2002 to 2004, we agree that it was neither fair nor appropriate to suggest that the 2013 Public Inquiry was, for the second Appellant, the latest of many Public Inquiries.

22.      The second point relied on by Mr Backhouse under this head was that the Traffic Commissioner described the assurances, which the second Appellant gave in the course of his evidence in 2013 as “strikingly similar” to the assurances which he gave in the 2009.  Mr Backhouse submitted that this was unfair because there was no evidence that the specific undertakings given in 2009 had not been fulfilled.  We have already explained, (see paragraph 14 above), that in relation to the specific undertakings this may well be correct.  However we are satisfied that the Traffic Commissioner had wider considerations in mind when she made this comment and that she was referring to promises to comply with the standard undertaking to keep authorised vehicles and trailers in a fit and serviceable condition.  We therefore reject this point.

23.      The third point relied on by Mr Backhouse under this head was that having indicated, (see, for example, paragraph 2(lv) above), that she would not take the serious collision on 8 July 2013 into account the Traffic Commissioner nevertheless stated, (see paragraph 2(lxiv) above), that the brief facts were that all or part of the load slid onto a car resulting in life threatening injuries to the driver.  Mr Backhouse submitted that there was no evidence before the Traffic Commissioner to justify this description and that it was unfair and prejudicial to include it having made it clear on several occasions that the cause of the accident on 8 July 2013 would not be taken into account.  We agree.  We acknowledge that the Traffic Commissioner was in a difficult position.  This was the most serious of a number of serious incidents but it was still under investigation and there was still the possibility that there would be a prosecution.  That meant that the Traffic Commissioner had to decide whether to continue with the Public Inquiry or whether to adjourn it pending the outcome of the investigation and any prosecution that resulted from that investigation.  In our view the Traffic Commissioner was correct in deciding to proceed with the Public Inquiry and she was correct in concluding that that meant that she could not investigate the circumstances of this collision for fear of prejudicing a prosecution, should there be one.  The problem is that when it came to writing her decision, more than two months after the adjourned Public Inquiry, she went further than she should have done given (a) the state of the evidence and (b) the indication she had rightly given.

24.      The fourth point relied on by Mr Backhouse under this head was that in referring to the evidence of PC Bennett about the number of tachograph infringements found in the course of his investigation she referred to his original statement that there were 35 most serious infringements but failed to have regard to his later correction to the effect that the 35 were very serious, not most serious infringements.  As we have already indicated this is clearly a valid point and it is a further example of the case being overstated.

25.      The fifth point relied on by Mr Backhouse under this head was that the Traffic Commissioner referred, when dealing with abnormal load notifications, to the first Appellant ‘only’ having a compliance rate of 88%.  Mr Backhouse submitted that while there was evidence to support the figure of 88% there was no evidence as to the percentage achieved by other operators so it was impossible to say whether 88% was good, bad or average. As a result he submitted that the statement that the first Appellant ‘only’ had a compliance rate of 88% was unsupported by the evidence and overstated the case.  This too is a valid point.

26.      The sixth point relied on by Mr Backhouse under this head was that the Traffic Commissioner was wrong to assert that there was no evidence of assurances in relation to maintenance being carried out and implemented.  In assessing this point it is important to consider the context of the Traffic Commissioner’s remarks.  They related to the assurances given to the Vehicle Examiner following the maintenance investigation in July 2013.  Mr Backhouse submitted, first, that the evidence was that since the maintenance investigation there had been 7 encounters between VOSA and vehicles authorised under the first Appellant’s licence during which no prohibitions had been issued.  His point was that this was evidence that the assurances had been implemented and had been effective in raising standards.  Secondly Mr Backhouse went on to refer to the report from Mr Robinson and the significant training initiatives, which had taken place.  We agree that the first point is a factor that the Traffic Commissioner ought to have taken into account and that had she done so her criticism would not have been so severe.  However it seems to us that the second point is not evidence that the assurances given in July 2013 were being implemented.  On the contrary it is evidence of the second Appellant’s tendency to leave matters to the last moment and to require prompting by other to do things that a competent and compliant operator would do on their own initiative.

27.      The seventh point relied on by Mr Backhouse under this head was that the Traffic Commissioner was wrong to conclude that there had been a complete disregard for proper maintenance.  He submitted that the Traffic Commissioner based that conclusion on the circumstances of the prohibition issued in relation to the missing clevis pin.  The point, which he sought to make, was that the missing clevis pin was incorrectly refitted, and fell out, following substantial maintenance on an axle.  Mr Backhouse described it as happening as a result of a moment of negligence on the part of the fitter.  If this had been the only prohibition issued to an authorised vehicle there might be something in this point.  But it was not; it was simply one of many prohibitions.  As a result it seems to us that the Traffic Commissioner was entitled to conclude that taken overall the picture was of a complete disregard for proper maintenance, in the sense that there was no insistence on a high enough standard of maintenance.  It seems to us that the Traffic Commissioner picked on this example because it was a safety critical component, because without it the brakes were inoperative.  In addition it was a trailer, which had been in service and would have remained in service had it not been called in for inspection.  Subject to the qualification that there was some evidence of improvement, late in the day, it seems to us that the Traffic Commissioner’s criticism was valid.

28.      The eighth point relied on by Mr Backhouse under this head was that the Traffic Commissioner was wrong to conclude that the second Appellant perpetually sought to blame others.  We accept that when pressed the second Appellant accepted that he had ultimate responsibility.  However we have to say that on many occasions the second Appellant’s initial response certainly appeared to be to blame others.  In our view it would have been better if the Traffic Commissioner had acknowledged that the Appellant had conceded that he bore ultimate responsibility especially because, in our view, it would not have detracted from the real criticism that the second Appellant: “failed to accept or recognise his own failings”.  In our view that is a valid criticism which is amply supported by the evidence.  It is also a criticism that goes to the heart of this case because it demonstrates why, at the moment, the second Appellant is not equipped to take responsibility for the compliant operation of an entity which holds an HGV operator’s licence.

29.      Turning to the second general point made by Mr Backhouse on behalf of the second Appellant he submitted that the nature and number of the Traffic Commissioners interventions meant that she deprived herself of the opportunity to make a fair and objective assessment of the second Appellant and the explanations which he attempted to give.  At paragraph 2(li) we have referred to a passage in which the Traffic Commissioner asked the second Appellant why he had left it so late to deal with various problems and we have quoted some of the exchanges.  The Traffic Commissioner returned to this topic part way through Mr Woolfall’s submissions and this resulted in further exchanges between the Traffic Commissioner and the second Appellant to which we have referred in paragraph 2(lxii).  Mr Backhouse referred us to other passages in the transcript, dealing with other topics, in relation to which he made similar complaints.  In our view it is not necessary to add to the length of this decision by quoting these passages because the points we want to make emerge clearly from the passages we have selected.

30.      We are concerned about the way in which the Traffic Commissioner handled this topic and our concern is increased by the fact this this was not an isolated incident.  In our view the number and nature of the Traffic Commissioner’s interventions made it impossible for the second Appellant to provide a clear, coherent and comprehensive answer to an important question.  In the absence of such an answer it was neither fair not appropriate to accuse the second Appellant, repeatedly, of trying to mislead when it seems to us that he was simply struggling to articulate his explanation, only to be interrupted, on one occasion, in mid sentence.  It seems to us that other questions ought to have been raised before that serious accusation was made.  For example how easily and with what consequences could the second Appellant’s son have pulled out of a national team event at short notice?  It appears to us that another consequence of the repeated interventions is that they prevented the Traffic Commissioner from understanding or accurately remembering the full extent of the explanation.  With the benefit of a transcript we have been able to piece it together, though had this topic been handled differently it may be that more detail would have emerged.  It seems to us to be clear, for example, that when the Traffic Commissioner returned to this topic on 11 October she had forgotten that the second Appellant’s son was competing for a national team and she had forgotten that in addition to 3 days of competition there were 5 days before that during which the second Appellant was dropping his son off at gyms and collecting him from them.  We say that because on 11 October she referred to a ‘trampolining exhibition and to the majority of the fortnight or 16 days during which the family was away being a family holiday.  In our view a further consequence of the way in which this topic was handled, (in common with some others), was to make it much more difficult for the Traffic Commissioner to stand back and apply a fair and objective judgment to the second Appellant’s evidence.  In short we are satisfied that the Traffic Commissioner intervened too soon and too often, the nature of the interventions was hostile when they ought to have been neutral and rather than seeking more detail they appeared designed to close off the debate.  We have to say that the overall appearance is that this aspect of the second Appellant’s evidence was not fairly treated or fairly assessed.

31.      For the reasons we have given we are satisfied that some of the points advanced in support of the first general ground relating to the disqualification of the second Appellant have substance as does the second general ground.  That is turn raises the question of what we should now do.  We are satisfied that it would not be appropriate to remit this matter for re-hearing on the question of disqualification.  Instead we intend exercise the power conferred on the Tribunal by Paragraph 17(2) of Schedule 4 to the Transport Act 1985 to: “make such order as it thinks fit”.

32.      In our view this was a bad case.  The second Appellant was in day-to-day charge of the first Appellant and, as such, he either knew or ought to have known that there were long-standing problems in relation to the maintenance of trailers, highlighted by the frequency with which prohibitions were issued.  In addition it appears that the second Appellant did not know, (when clearly he should have known), that no proper steps were being taken to ensure compliance with the rules on driver’s hours and tachographs.  We acknowledge that some steps were taken, which appeared to have improved the maintenance of trailers and that other steps were taken resulting in drivers and the second Appellant attending appropriate courses.  In addition there were promises of other improvements.  Our concern is that these steps were taken late in the day and often at the prompting of others when we would have expected a competent operator anxious to operate compliantly to endeavour to put matters right on his own initiative.  The second Appellant’s record of failing to act quickly and decisively was vividly displayed in his limp and tardy response to the three very serious safety-related incidents that occurred on public roads over a very short period in the Summer of 2013.  In our view the evidence indicated that the second Appellant lacked the knowledge of the regulatory regime necessary for running a compliant operation and lacked the management skills needed to run a compliant operation with safety culture at its heart.

33.      Taking these factors into account we are satisfied that disqualifying the second Appellant was necessary, appropriate and proportionate.  The Traffic Commissioner took the view that the appropriate period of disqualification was 7 years.  She reached that figure because she considered the conduct of the second and third Appellants: “is so very serious that any shorter period would not reflect the breaches adequately”.  In the case of the second Appellant we are concerned that her assessment of the seriousness was influenced (a) by those findings of fact, identified above, which were not supported by the evidence and (b) by interventions and accusations, which we have concluded were unfair and which made it impossible for her to make a fair and objective assessment of this part of the second Appellant’s evidence.  Making allowance for those matters we have come to the conclusion that the appropriate period of disqualification is one of 5 years.  The second Appellant’s appeal is allowed to that extent.

34.      In the case of the third Appellant Mr Backhouse submitted that given his age and his state of health and given that he had, effectively, retired from any day-to-day role in the business there was no need to disqualify him and it was neither appropriate nor proportionate to do so.

35.      We do not agree.  The fact is that, for whatever reason, the third Appellant remained a director of the first Appellant.  That means, in our view, that he chose to retain the responsibilities of a director for the running of the company.  If he wished to avoid those responsibilities then the only option open to him would have been to resign as a director.  We accept that he did not have day-to-day control of the company but that does not mean that he had no role.  In the absence of day-to-day control he was in a position to stand back and take a broader view.  He was entitled, amongst other things, to inquire, to advise and to be consulted and anyone who was aware of his position in relation to the company would expect him to do these things, at the very least.  If he did not do the first two then in our view he should have done and if he was not consulted then should have insisted that consultation took place.  The incident on 27 June, (see paragraph 2(xi) above), provides another example of the kind of role that the third Appellant ought to have played.  The incident caused substantial disruption to traffic in the area.  Our suspicion that it would have featured on the local news was confirmed in the course of the hearing.  That is exactly the kind of situation in which we would have expected a director in the position of the third Appellant to take an active role in asking questions and prompting action.  There is no evidence that this happened in relation to this or any other incident.

36.      We agree with the Traffic Commissioner that it was necessary, appropriate and proportionate to disqualify the third Appellant, even though he did not have day-to-day control of the company.  He retained the responsibilities of a director and the evidence indicates that he failed to discharge those responsibilities.  In view of the fact that we have reduced the period of disqualification in the case of the second Appellant from 7 years to 5 years we will allow the appeal of the third Appellant and reduce his disqualification to 5 years as well.  We share the view, which the Traffic Commissioner clearly took that no sensible distinction could be made between these two Appellants in relation to the length of disqualification.

37.      Finally we turn to the question of the second Appellant’s position as transport manager.  It was accepted that the findings that he was no longer of good repute or professionally competent, as transport manager must stand.  That means, in turn, that disqualification from acting as a transport manager is mandatory.  The Traffic Commissioner disqualified the second Appellant for an indefinite period and concluded that there were no rehabilitation measures which could bring about the requisite change in attitude to ensure compliance.  Mr Backhouse submitted that that was a harsh judgment coloured by the matters that we have considered in relation to the appeal against the disqualification of the second Appellant.

38.      We agree.  The purpose of a rehabilitation measure is to provide a pre-condition, which must be met before the person disqualified can apply for the disqualification to be cancelled or varied.  As things stand the Appellant can apply at any time to have the disqualification cancelled or varied, though given the findings, which remain undisturbed, the prospects of achieving an early cancellation would not be good.  We agree with the Traffic Commissioner that an indefinite disqualification was appropriate in this case.  However our view is that it ought to have been coupled with a rehabilitation measure requiring the second Appellant to re-qualify as a transport manager before applying for the disqualification to be cancelled or varied.  This would not require the second Appellant to re-qualify if he does not wish to do so.  Nor does it guarantee that re-qualification will result in the disqualification being cancelled or varied.  But it would give the public some additional re-assurance if the second Appellant were to re-qualify and was then able to persuade the Traffic Commissioner that it would be appropriate to cancel or vary the disqualification.

39.      For these reasons the appeal of the first Appellant is dismissed and the revocation of its operator’s licence must stand.  The appeals of the second and third Appellants in relation to disqualification are allowed to the extent that the 7 year period of disqualification is reduced to 5 years.  The appeal of the second Appellant in relation to his disqualification as transport manager is allowed to the extent that he may not apply to have that disqualification cancelled or varied until he has passed and appropriate written examination for transport managers that has been organised by an approved body and thereby becomes the holder of a certificate of professional competence issued by that body.

 

 

 

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

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

18 August 2014