Neutral Citation Number: [2014] UKUT 52 (AAC)

 

Appeal No.  T/2013/74

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

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

Dated 13 September 2012

 

 

 

Before:

His Hon Michael Brodrick, Judge of the Upper Tribunal

George Inch, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

Appellant:

HIGHWAY INTERNATIONAL LIMITED

 

 

 

Attendances:

For the Appellant: The Appellant was represented by a Director, Mr Pavel Gaga

 

 

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

Date of hearing: 17 January 2014

Date of decision: 30 January 2014

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED.

 

 

 

 

 

SUBJECT MATTER:-   Miscellaneous, failure to respond to correspondence.

 

 

CASES REFERRED TO:- Appeal T/2012/06 Goodman Hitchens PLC

 

REASONS FOR DECISION

 

 

1.         This is an appeal from the decision of the Traffic Commissioner for London and the South East of England to revoke the goods vehicle operator’s licence held by the Appellant, with effect from 13 September 2013.

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

(i)               The Appellant is the holder of a standard international goods vehicle operator’s licence.

(ii)              On 28 September 2011 letters were sent to all Transport Managers named on standard operator’s licences.  The purpose of the letters was to draw attention to the changes, which would take effect on 4 December 2011, when Regulation (EC) 1071/2009 was implemented and to give advice about the action required by individuals.  The letter enclosed a guidance note and a questionnaire.

(iii)             On 1 March 2012 a reminder letter was sent to all those who had not responded to the letter of 28 September 2011.

(iv)            In July 2012 details of those operators who had still not responded were sent to the Office of the relevant Traffic Commissioner, (“OTC”), so that a final letter could be sent. 

(v)             As a result on 16 July 2012 the OTC wrote to the Appellant at “Highways International Ltd, C/o Norbert Dentressangle Logistics Ltd. Royal Eagle Close, Medway City Estate, Rochester, ME2 4NF”.  The letter stated that it was being sent by first class and recorded delivery post “to all known addresses”.  The letter warned that the Traffic Commissioner was considering the revocation of the licence on a number of grounds.  It gave the Appellant a final opportunity to complete and return the questionnaire relating to its Transport Manager, by 6 August 2012.

(vi)            On 25 July 2012 one copy of this letter was returned to the OTC marked: “addressee gone away”.  On 30 July 2012 the second copy was returned, similarly marked.

(vii)           On 13 September 2012 the OTC wrote to the Appellant at the address given in paragraph 2(v) above, save that the letter was not sent C/o Norbert Dentressangle Logistics Ltd.  This letter informed the Appellant that, in the absence of a reply to the letter of 25 July 2012 the Traffic Commissioner had revoked the licence, with effect from 13 September 2012.

(viii)          On 27 September 2012 the letter of 13 September 2012 was returned marked: “addressee gone away”.

(ix)            In September 2013 the Appellant applied to increase the number of vehicles authorised by its operators licence.  The response was to the effect that the application was being made on behalf of an operator whose licence had been revoked.

(x)             On 20 September 2013 the OTC wrote to the Appellant at: “4 Cochrane House, Admirals Way, London, E14 9UD”.  The letter starts: “I refer to your previous correspondence regarding the revocation of your company’s …. operator’s licence”.  The previous correspondence from the Appellant is not included in the Appeal bundle but it would appear from the terms of the letter that is a response to some form of protest on behalf of the Appellant that the OTC had written to the wrong address.  The letter went on to state that the correspondence address in the OTC’s records was “Royal Eagle Close, Medway City Estate, Rochester, ME2 4NF”, and the operating centre address was the same, preceded by “C/o Norbert Dentressangle”.  It went on: “As this office and the CLU were not notified of a change of address the licence was revoked under s. 26(1)(h)”.

(xi)            It appears that the Appellant replied by email on 20 September 2013.  A copy of the email is not included in the Appeal bundle.  It would appear that Mr Gaga, on behalf of the Appellant challenged what was said in the letter of 20 September.

(xii)           On 23 September 2013 the OTC replied. They made reference to three emails in 2011 and set out their interpretation that the address given was to be used once, to post some documents, but was not to be regarded as a permanent or regular address for correspondence.  Their view was that the third email, dated 8 February 2011 confirmed that that the correspondence address was the address shown on the OTC’s records, which was also the trading address shown at Companies House.

(xiii)          The earliest email we have seen is dated 9 April 2010.  It is addressed to Tim Hayes, at a VOSA email address.  It reads: “No post came from you at all!  Did you send any?  Please use below address for all future correspondence with regards to O licence: Highways Int. Ltd, c/o Mr Pavel Gaga, Flat 1522 New Providence Wharf, 1 Fairmont Avenue, London, E14 9QJ, (“Flat 1522”).  Please post all Licences and Identity discs to the above address. Thanks, Pavel”.

(xiv)         The next email we have seen is dated 27 January 2011 when Mr Gaga emailed Tim Hayes saying that he had not received “your post with the EU Transport Licence for the new 6 Mercedes trucks.  However it seems there is a problem with delivery to our business address.  Therefore please use my private address below and resend these docs to me immediately”. He then set out the Flat 1522 address.  In other words it appears that from 27 January 2011 the OTC were made aware that there was a problem with delivery of mail at the business address.

(xv)          On 1 February 2011 at 16.22 Mr Gaga emailed James Cliff, (with a copy to Tim Hayes) apparently asking for confirmation that Mr Hayes had posted the documents referred to in the email of 27 January 2013, which appears to have been copied into this email.

(xvi)         On 2 February 2011 at 11.23 James Cliff replied that he had posted the documents to Flat 1522.

(xvii)        On 3 February 2011 Mr Gaga emailed Mr Cliff saying that he had got the documents but that they were ‘all wrong’ because the address on them had been changed which is not what he meant.  He went on: “the address below, (i.e. Flat 1522), is only to be used to post them to me (on this occasion only!!  … as some reason I did not received them sent to the original company address!  So please change the address back the way it was and only re-print them and post them to the below address (this is not a permanent or regular address for such correspondence!!)”.

(xviii)       On 4 February 2011 at 11.03 Mr Cliff replied saying: “Mr Gaga, the correspondence address has always been Flat 1522… , therefore the documents are correct”.  At 11.08 Mr Gaga replied saying: “NO !! this is my private address !! so the licence must be on company’s address ……….. and only use my private address to post them to me”.  At 1259 Mr Cliff asked: “What is your company address?”  At 19.59 Mr Gaga replied giving the Royal Eagle Close address.

(xix)         We have not seen an email dated 8 February 2011.  Given the exchanges on 4 February 2011 it may well be that there has been a misprint.

(xx)          On 13 October 2013 the Appellant filed a Notice of Appeal.  He sought and was granted permission to appeal out of time.  His main ground of appeal was that the Traffic Commissioner had used the wrong address, with the result that he had not received the vital letters.  He also pointed out that the Appellant’s email address and telephone number had remained the same throughout the relevant period and that the address of the registered office was available on the Companies House website.

3.         Mr Gaga attended in person to represent the Appellant.  He provided us with a skeleton argument for which we are grateful and he attached to it a print-out of information available on the companies house website.

4.         He explained that much of the Appellant’s work is done on the continent.  He said that this meant that it was important to avoid any discrepancy between the different documents which might have to be produced in the course of a journey.  He said that when he received the documents on 3 February 2011 they were “all wrong” because they set out the correspondence address, whereas the wanted them to show the Royal Eagle Wharf address to avoid any discrepancy with other documents showing that address.  He said that it was clear from the email dated 9 April 2010 that he was requesting that correspondence should be sent to the Flat 1522 address.  He added that this was confirmed by the response of Mr Cliff in the first email of 4 February 2011.

5.         Mr Gaga went on to make two further points.  The first, in the form of a question, was: why not email me when the letters were returned?  The second, again in the form of a question, was: why not use the registered office address at companies house?  In relation to the second point Mr Gaga referred to the print-out from Companies House.  We give permission for this to be adduced as fresh evidence.  That appears to show that between 23 August 2008 and 7 February 2011 the Registered office was at the Royal Eagle Close address.  From 7 February 2011 to 14 November 2011 the Registered office was at Regus House, Victory Way, Admirals Park, Dartford, Kent.  Then between 14 November 2011 and 29 January 2013 the registered office was at 4 Cochrane House, Admirals Way, Canary Wharf, London.

6.         We have to say that the letters and emails set out above do not make happy reading.  In our view it is clear from the email dated 9 April 2010 that all future correspondence with regard to the Appellant’s operators licence was to be addressed to Flat 1522.  The fact that that had always been the case was acknowledged by Mr Cliff in his email dated 4 February 2011.  Despite that it appears that documents were sent to the business address, in January 2011, prompting the email of 27 January 2011, which ought to have alerted the OTC to the fact that the Appellant would not necessarily receive letters sent to the business address.  However we accept that the email exchanges in early February 2013 were not very clearly expressed by Mr Gaga.  It appears that he was stressing the need to have his business address rather than his correspondence address on the documents, because, as he explained to us, the discrepancy would cause problems to anyone who produced the relevant documents when stopped.  However we can see that in his anxiety to get this point across he could, perhaps, have given the impression that the Flat 1522 address had become a temporary address and that, thereafter, the business address was to be used as the correspondence address.

7.         Taken at face value the bald statement in the letter of 20 September 2013 that: “this office and the CLU were not notified of a change of address”, suggests that the earlier letters were clearly sent to the wrong address because, if that was the case, they should have been sent to Flat 1522.  It seems to us that it is only if the emails were interpreted as a change of address that the OTC could claim that the Royal Eagle Close address was the correct address.  On 23 September 2013 the OTC changed their position but it seems to us that they did so on the basis of one email taken out of context.  Furthermore if by ‘Trading Address’ the letter of 23 September 2013 means the Registered Office it is clear from the document now produced by Mr Gaga that the OTC was relying on out of date information.

8.         In our view it is important at this stage to go back to the terms of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] and the Goods Vehicles (Licensing of Operators) Regulations 1995, [“the 1995 Regulations”].  A Traffic Commissioner is given discretionary power, under s. 26(1) of the 1995 Act to make a direction revoking, curtailing or suspending an operator’s licence.  Under s. 27 of the 1995 Act the Traffic Commissioner is required to revoke the licence if it appears to him that the operator no longer satisfies the requirements of s.13A(2) of the 1995 Act or that the designated Transport Manager no longer satisfies the requirements of s. 13A(3) of the 1995 Act.  Before giving a direction under s. 27(1) of the 1995 Act the Traffic Commissioner is required, (see s. 27(2) of the 1995 Act), to give notice to the licence holder that he is considering such action.  In any event s. 29(1) of the 1995 Act provides that a Traffic Commissioner shall not give a direction under s. 26(1) or (2) or s. 27(1) of the 1995 Act, (amongst other provisions) without first holding a Public Inquiry if the holder of the licence requests him to do so.

9.         The letter dated 16 July 2012 made it clear that the Traffic Commissioner was considering action under both s. 26(1) and s. 27(1) of the 1995 Act.  Accordingly the mandatory requirement to give notice under s. 27(2) of the 1995 Act applied in this case.

10.      The provisions in relation to giving notice are set out in paragraph 6 of Schedule 4 to the 1995 Regulations.  Given the importance of these provisions we set them out in full:

“Giving of notices

6.  (1)  A notice required or authorised to be sent to a person under this Schedule may be effected by—

(a) delivering it to him at an address which is his proper address; or

(b) sending it to him by post to an address which is his proper address; or

(c) transmitting to him a facsimile copy of it by means of electronic signals.

(2) A notice sent under paragraph (1) shall, for the purposes of this Schedule, be deemed to have been sent when it would have been delivered in the ordinary course of post notwithstanding that—

(a) the notice was returned as undelivered or was for any reason not received; or

(b) was in fact delivered or received at some other time.

(3) Any such document may—

(a) in the case of a body corporate, be sent to the secretary or clerk of that body;

(b) in the case of a partnership, be sent to any partner;

(c) in the case of an unincorporated association other than a partnership, be sent to any member of the governing body of the association.

(4) For the purposes of this paragraph and section 7 of the Interpretation Act 1978, the proper address of any person is his last known address (whether of his residence or a place where he carries on business or is employed) and also any address applicable in his case under the following provisions—

(a) in the case of a body corporate, its secretary or its clerk, the address of its registered or principal office in the United Kingdom;

(b) in the case of an unincorporated association (other than a partnership) or member of its governing body, its principal office in the United Kingdom.

(5) Where a person has in the licence-holder’s application notified the traffic commissioner of an address, or, subsequently notified a new address under regulation 25, at which documents may be given to him for the purposes of correspondence that address shall also be his proper address for service for the purposes mentioned in sub-paragraph (3) or, as the case may be, his proper address for those purposes in substitution for that previously notified.”

11.      It is important to bear in mind a number of points in relation to these provisions.  First, paragraph 6(1) uses the word “may”.  In other words the person sending the notice is required to exercise discretion as to which method of notice is to be used. 

12.      Second, the three methods of giving notice, ‘delivering, sending and transmitting’ are not mutually exclusive.  There will be cases in which it is appropriate to use more than one method either at the same time or in succession.  The choice is a matter for the Traffic Commissioner and/or anyone acting under delegated authority.  It will depend on the circumstances of the individual case and may involve balancing, on the one hand, the interest of the operator in being made aware of the regulatory action being considered and, on the other, the cost in time and money of using more than one method of giving notice.

13.      Third, the reference to  “transmitting” a facsimile copy by means of electronic signals may well have been directed, in 1995, to sending a letter by Fax.  ‘Facsimile’ simply means an exact copy, sent, in this case, by electronic signals.  We are satisfied that this provision should be construed, (if necessary by approaching it purposively), as extending to a letter sent as an email attachment.  It follows that where an operator has provided an email address this is a method of giving notice which should be considered, especially in cases where it is known either that a letter posted to a proper address will not be received or that all the letters sent to proper addresses have been returned.

14.      Although it would not come within the provisions for giving notice it is important to remember that email may serve another useful purpose.  What we have in mind is that there will be cases where an email asking for confirmation of the current correspondence address or, if the address given has changed, the provision of a new correspondence address, will significantly improve the prospect of important letters being received.  It is for the Traffic Commissioner and/or the OTC to decide if and when it is appropriate to take this course.

15.      Fourth, paragraph 6(2) provides that a notice sent under paragraph 6(1) “shall” be deemed to have been sent when delivered in the ordinary course of post even if returned undelivered.  The approach to this necessary but draconian provision is considered in paragraph 17.  We would simply add, at this stage, that in our view the expression: “in the ordinary course of post” is not confined to letters sent via the Royal Mail or other carriers but must extend to ‘delivery’ via Fax or email.

16.      Fifth, the expression “proper address” has been widely defined.  Before sending out letters which give notice that the Traffic Commissioner is considering regulatory action Traffic Commissioners and their staff should consider which of the proper addresses known to them appear to offer the best chance of bringing the matter to the attention of the operator.

17.      In our view it is important not to allow the fact that a notice is deemed to have been received, even if it has been returned undelivered, to override the initial discretion about the manner in which notice is to be given in a particular case.  The provision is necessary to ensure compliance with the regulatory regime. Without it rogue operators would be able to make the proper enforcement of the regulatory regime difficult, if not impossible.  But it is important to recognise that it is a draconian provision and that unless it is operated fairly it may undermine the regulatory regime by creating an appearance that it is operated unfairly.

18.      In Appeal T/2012/06 Goodman Hitchens PLC the Tribunal stressed that paragraph 6(1) uses ‘may’ for a reason adding that it did not remove the obligation for the Traffic Commissioner, (who for these purposes may be acting through others), from striving for fairness.  In that case the Deputy Traffic Commissioner had positive evidence that service had not been and in all probability could not have been effected via the address used.  In addition it would not have been difficult to give notice by sending the call-up letter to an address actually used by the Appellant because both the registered office and the current address of the company were known but were not used.  In the circumstances of that case the Tribunal concluded that the other addresses, which came within the definition of proper addresses should have been used.  We agree.

19.      In our view once the Traffic Commissioner and/or the OTC have actual knowledge that the chosen method of giving notice under paragraph 6(1) has failed, (as was the case here when the second of the letters dated 16 July 2012 was returned), it is incumbent on the Traffic Commissioner and/or the OTC to consider whether any other method of giving notice in compliance with paragraph 6 of Schedule 4 to the 1995 Regulations ought to be used.  If the conclusion is that there is no other proper address to which notice could be sent then it is appropriate to conclude that notice has been deemed to be sent under paragraph 6(2).  However, in the case of a company it seems to us that that conclusion ought not to be reached until notice has been sent to the current registered office of the company.  In the case of an operator who has previously corresponded by email it seems to us, (in the situation described in the first sentence of this paragraph), that that medium ought to be used before resorting to the deemed receipt provision.  We say that because it would not take much time, it is inexpensive and if the email address is still current it is likely to provoke a response, especially from operators who are generally compliant but struggle with paperwork.

20.      Returning to the present case it must have been apparent to the Traffic Commissioner and/or the OTC by 30 July 2012, or very shortly afterwards, that both copies of the letter of 16 July had not been received by the Appellant.  In our view it was not appropriate, at that stage, given the facts of this particular case, to rely immediately on the ‘deemed receipt’ provision in Paragraph 6(2) of the 1995 Regulations.  The reason is that in this case there were two other methods of giving notice that should have been considered.  First, it is apparent from the lively email exchanges in February 2011 that the use of email as a method of giving notice should have been considered in this case.  If it had been considered it is difficult to see on what basis it could have been rejected, given the speed with which Mr Gaga responded in February 2011. 

21.      Second, if the Traffic Commissioner and/or the OTC were not aware of the Appellant’s Registered Office they could have obtained that address from Companies House.  We have assumed that the OTC must have been unaware of the address of the Registered Office in July 2012.  We say that because of the assertion in the letter of 16 July 2012 that the letter was being sent to “all know addresses”, [see paragraph 2(v)].  There is no evidence it was sent to the Registered Office.  While it is impossible to predict the outcome, if that address had been used, we are satisfied that once it was known that both the letters dated 16 July 2012 had been returned this is an address which should have been used before relying on the deemed receipt provision.

22.      For these reasons the appeal is allowed and the revocation of the Appellant’s licence is set aside.

23.      Following on from this result we would simply add:

                    (i)        Within 7 days of receiving this decision the Appellant should provide the Traffic Commissioner with an up to date correspondence address.

                   (ii)        When doing so the Appellant would be well-advised to ask to be supplied with the documents relating to the Appellant’s Transport Manager, which should then be returned, completed, within the period specified by the Traffic Commissioner.

                  (iii)        If the Traffic Commissioner is considering disciplinary action against the Appellant our view is that it would be better to send out a new Call-up letter tailored to the current situation.

                 (iv)        If the Appellant wishes to pursue an increase in the number of authorised vehicles the better course, in our view, would be to submit a fresh application.

 

 

 

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

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

30 January 2014