Neutral Citation Number: [2015] UKUT 455 (AAC)

Appeal No.  T/2015/21

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

ROAD TRANSPORT APPEALS

 

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

Dated 4 March 2015

 

 

 

Before:

His Hon. Michael Brodrick Judge of the Upper Tribunal

Leslie Milliken Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

 

 

Appellant:

J O’DOHERTY HAULAGE LIMITED

 

 

 

 

Attendances:

For the Appellant: Andrew Kinnier, of Counsel, instructed by Cripps LLP

 

 

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

Date of hearing: 16 July 2015

Date of decision: 12 August 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.  The period of suspension will commence at 0001 on 29 August 2015 and end at 2359 on 4 September 2015

 

 

 

 

 

 

 

 

SUBJECT MATTER:- Suspension

 

 

CASES REFERRED TO:- T/2013/47 Dundee Plant Co. Ltd [2013] UKUT 525 (AAC) 

NT/2013/82 Arnold Transport & Sons Ltd v DOENI [2014] UKUT 162 (AAC)

T/2014/24 LA & Z Leonid t/a E T S [2014] UKUT 423 (AAC)

 

 

 

REASONS FOR DECISION

 

 

Background

1.         This is an appeal from the decision of the Traffic Commissioner for London and the South East of England to suspend the standard national goods vehicle operator’s licence held by the Appellant for a period of 7 days, with effect from 0001 on Saturday 4 April 2015.  The Traffic Commissioner made other orders and an undertaking was added to the licence but none of these matters is the subject of this appeal.

Facts

2.        The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision.  It is summarised in the remainder of this section.

3.        The Appellant’s standard national operator’s licence was granted on 7 May 2004.  It currently authorises 45 vehicles and 2 trailers and the Appellant has 45 vehicles in possession.

4.        In 2013 one of the Appellant’s vehicles was stopped at the roadside.  It was found that the driver, an employee of the Appellant, was driving without a driver CPC, (Certificate of Professional Competence), qualification.  Further investigation showed three periods of driving without a driver’s card.  The Traffic Examiner concerned spoke to John Rochester, the Operations Manager, with responsibility for the transport side of the company.  He stated that he believed that all drivers were exempt from having a driver CPC until September 2014.

5.        In July 2013 a check on the systems relating to driver’s hours and tachographs was “mostly satisfactory” although it appeared that data from the vehicle unit was not being checked and that the Appellant had fallen slightly behind on viewing and printing out driver card infringement reports.  Mr Rochester was informed of the importance of checking the vehicle unit information because otherwise offences could be hidden. The driver was prosecuted and fined.  The Traffic Examiner was satisfied that Mr Rochester had been made aware of the requirements.

6.        On 29 July 2013 the Office of the Traffic Commissioner, (“OTC”), wrote to the appellant to issue it with a ‘formal warning’ because one driver had been found to be driving without a driver’s card.  The letter went on to remind the Appellant of the importance of adhering to the terms of its licence at all times.

7.        On 5 September 2013 the Appellant notified the OTC that it had incurred a Prohibition at a roadside check on 27 August 2013.  It was informed that no further action would be taken.

8.        On 11 November 2013 an ‘S’ marked prohibition was issued to one of the Appellant’s vehicles. On 15 November 2013 the Appellant wrote to dispute the fact that the prohibition was ‘S’ marked, explaining how the tyre was probably damaged without the driver’s knowledge.

9.        On 2 December 2013 John Rochester wrote to the driver of the vehicle given an ‘S’ marked prohibition.  He stressed that once the vehicle left the yard it was the responsibility of the driver to ensure compliance.  The letter contained a formal written warning.  In addition a notice was sent to all drivers.

10.      On 17 January 2014 the Appellant submitted an application to increase the number of vehicles authorised from 45 to 55.

11.      On 4 April 2014 VOSA, (now DVSA), commenced an investigation following rumours that drivers employed by the Appellant had been bragging about the number of hours that they worked and the amount of money that they were earning.  The rumours included details as to how the drivers claimed to circumvent the legal requirements.

12.      On 16 April 2014 a Traffic Examiner met John Rochester in order to conduct a systems check.  This was marked ‘unsatisfactory’ as a result of many analogue tachograph charts being unavailable.  It was explained that these had been discarded because the Appellant no longer operated vehicles using analogue tachograph charts and Mr Rochester was unaware of the obligation to retain records for 15 months.  Some charts were recovered from two vehicles still at the yard waiting to be sold.  Analysis of these charts showed substantial missing mileage or missing charts.  Initial and refresher training of drivers was inadequate.  Data was analysed by a third party but there was little evidence that adequate action was taken on the findings. Analysis of the driver card and vehicle unit data revealed a number of offences for which the Appellant and drivers were subsequently prosecuted.  One driver, employed by the appellant since 13 February 2013 was mainly responsible for offences of driving without a driver card.  This driver held an Irish driving licence and had never held a driver card.  Other drivers commenced journeys without inserting their driver card or withdrew it before completing the journey.

13.      The overall conclusion reached by the Traffic Examiner as a result of the check was that the Appellant had systems in place but that the nature and volume of the breaches led to the conclusion that it did not have an effective or robust system.  In particular there was ample evidence to show that vehicles were being driven without a driver card being inserted, sometimes for the whole journey sometimes for part or parts of a journey.  The Traffic Examiner also concluded that the task of overseeing all matters concerning transport and monitoring driver’s activities was too much for one person, given that the Appellant was operating 45 vehicles.  He was told that a new CPC holder had been employed and that someone would assist Mr Rochester.

14.      On 24 April 2014 Mr Rochester emailed the Traffic Examiner.  He explained that he had destroyed analogue tachograph charts after the vehicles had been sold having first checked with the insurance company that there were no outstanding matters.  He had forgotten about the obligation to retain records.  He said that he had devised a form, to be completed by drivers, containing a declaration that the driver did not undertake any other employment save for their work for the Appellant.  He also explained that he was planning to require drivers to print out a daily report to enable an immediate check to be made as to hours worked and distance travelled.

15.      On 30 October 2014 a vehicle operated by the Appellant was stopped.  It was found that the driver had not completed his periodical driver CPC training.  Documents produced related to the brother of the driver.  The Appellant was not prosecuted but the driver was.

16.      On 9 December 2014, as a result of the check in April 2014 the Appellant was convicted of (i) 10 offences of failing to use a tachograph record sheet or driver card, (ii) 5 offences of failing to take weekly rest and (iii) 5 offences of permitting a failure to use a tachograph record sheet or driver card.  The Appellant was fined a total of £300 and ordered to pay £573 in costs.  The Appellant notified the OTC of these convictions on 5 January 2015 though the letter was not specific about any of the details.

17.      On 26 January 2015 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant to call the company to a Public Inquiry to be held on 2 March 2015.  The letter set out the concerns of the Traffic Commissioner, which arose as a result of the matters summarised above.  The letter indicated that good repute, financial standing and professional competence were all in issue.  In addition the capability of the Appellant’s transport manager was put in issue.  A summary of the evidence was provided and the evidence itself was sent with the letter.

Public Inquiry

18.      The Public Inquiry took place before the Traffic Commissioner on 2 March 2015.  The recording equipment malfunctioned with the result that no transcript of the proceedings is available.  Copies of the notes made by the Traffic Commissioner and the Public Inquiry Clerk have been made available but these are not always easy to read.

19.      Two points emerge clearly from the notes.  The first is that the Traffic Commissioner considered revoking the licence but drew back from that course on this occasion.  The second is that his intention in suspending the licence for a week was to: “send a massive signal” with a view to deterring other operators from behaving in the same way.

Traffic Commissioner’s Findings and Reasons

20.      The Traffic Commissioner’s decision and the reasons for it are set out in the decision letter dated 4 March 2015.  Given the failure of the recording equipment and the absence of a transcript it is very unfortunate that the Traffic Commissioner did not issue a full written decision, which would have set out all the relevant facts.

21.      Instead, having set out the result, the letter simply went on to list the negative and positive features, which the Traffic Commissioner weighed up when reaching his conclusion.  We would urge Traffic Commissioner’s to be cautious and sparing in using this approach to setting out the reasons for a decision.  We say that because one obvious disadvantage is that it makes it much more likely, in a case where the Upper Tribunal is persuaded to allow an appeal, that the matter will have to be remitted for rehearing.  We say that because giving reasons in this way is unlikely to provide the Upper Tribunal with sufficient material on which to make such order as it thinks fit.

22.      In summary the negative features were these: (i) driving without a driver card was identified in 2013 and appropriate advice was given, (ii) it was apparent that this problem still persisted in March 2014, (iii) as at March 2014 the Appellant relied on driver card print-outs, which were not compared to data from the vehicle unit, (iv) in December 2014 one vehicle was driven for over 1000 kms without a driver card being inserted, (v) the limited number of analogue cards available showed large amounts of missing mileage. (vi) frequent and numerous offences of insufficient weekly rest had not been identified or prevented by the Appellant, (vii) one driver was permitted to drive a vehicle with a digital tachograph between April and June 2014 without having a digital driver card.  The Appellant was satisfied by the print-outs produced by this driver notwithstanding that they clearly stated: “no legal print-out”, (viii) another driver drove without having a Driver Qualification Card.  He had presented a card belonging to his brother, which the Appellant had not questioned, (ix) in December 2014 the Appellant was convicted of a total of 17 offences.

23.      The positive features were: (i) that tachograph analysis for January and February 2015 showed a better picture, with no missing mileage and fewer infringements, (ii) Mr Tyler had been employed as an additional nominated transport manager, which had led to a marked improvement and (iii) the Appellant had a good MOT pass rate.

24.      The Traffic Commissioner decided to suspend the Appellant’s operator’s licence for 7 days with effect from 0001 on Saturday 4 April until 2359 on Friday 10 April.  The Traffic Commissioner gave the Appellant about one month’s notice of the suspension, which included the Easter Monday Bank Holiday.

25.      In addition the Traffic Commissioner found that James O’Doherty, the nominated transport manager had lost his good repute as transport manager.  He was disqualified from acting as a transport manager for an indefinite period and he was informed that he would not be entitled to apply to have the disqualification cancelled or varied until he had passed the current transport manager CPC examination.  An undertaking was also added to the licence requiring an independent audit of the Appellant’s systems for driver’s hours and tachograph compliance to be carried out by 30 June 2015.  The undertaking provided that the Appellant should provide the OTC with a copy of the report.  The application for a variation of the licence was refused but the Traffic Commissioner indicated that he would be prepared to consider a similar application following a satisfactory audit.

Grounds of Appeal

26.      On 26 March 2015 the Appellant filed a Notice of Appeal and applied for the suspension to be stayed pending the determination of the appeal.  The Traffic Commissioner granted the application for a stay.

27.      The Appellant put forward two main grounds of appeal.  The first was that in all the circumstances of the case the decision to suspend the operator’s licence for a week was disproportionate.  The second was that the Traffic Commissioner failed to give any or any sufficient weight to a number of points.  We will refer to those points when summarising the submissions made on behalf of the Appellant.

Appeal Hearing

28.      At the hearing of the appeal the Appellants were represented by Mr Andrew Kinnier, of Counsel, who presented the case for the Appellants realistically and succinctly.

29.      Dealing with the first ground of appeal Mr Kinnier submitted that suspension was disproportionate because the Traffic Commissioner had failed to put this case in its proper context.  He referred us to the decision in appeal NT/2013/82 Arnold Transport & Sons Ltd v DOENI [2014] UKUT 162 (AAC), and, in particular to the passage at paragraph13 in which the Tribunal explained how the reaction of an operator when something goes wrong can be instructive.  He submitted that this case came somewhere between category one, an operator who recognises the problem at once and takes immediate action and category two, an operator who only recognises the problem when it is pointed out in the call-up letter.  He further submitted that this case clearly did not come into categories three or four because effective action had been taken before the date of the Public Inquiry.  He made it clear that the Appellants accepted that the Traffic Commissioner was entitled to take into account the impact of his decision on the industry as a whole.  He submitted that the other factors, to which we will turn, also pointed to the conclusion that suspension was disproportionate.

30.      In support of the second main ground of appeal the first point made by the Appellant was that the Traffic Commissioner failed to give any or any sufficient weight to the Appellant’s longstanding good reputation and history of regulatory compliance.  Mr Kinnier submitted that there was no indication in the decision that the Traffic Commissioner had taken this into account.

31.      The second point made in relation to this ground was that although the Traffic Commissioner made reference to an improved picture as a result of the January and February 2015 tachograph analysis and the employment of Mr Tyler there was no indication that the Traffic Commissioner had given these favourable factors appropriate weight.

32.      The third point made in relation to this ground was that the Traffic Commissioner failed to give any or any sufficient weight to the fact that the Appellant had, by the date of the Public Inquiry, pleaded guilty to a number of offences and had been punished for them.  Mr Kinnier accepted that this was not a situation in which he could advance an argument based on ‘double jeopardy’ but he submitted that the Traffic Commissioner ought, nevertheless, to have taken into account that the Appellant had been punished for these offences.

33.      The fourth point made in relation to this ground was that the Traffic Commissioner failed to give any or any sufficient weight to the financial impact on the Appellant of a one week suspension.  Mr Kinnier referred us to a passage in the notes of the hearing, which refers to suspension and very shortly afterwards records: “does not want to fold”.  Mr Kinnier submitted that there is no indication that any consideration was given, as it ought to have been, to suspension of part of the fleet. 

34.      The fifth point made in relation to this ground was that the Traffic Commissioner failed to give any or any sufficient weight to the fact that the Appellant had co-operated fully with the investigation and with the Public Inquiry and had not attempted to conceal offences or to mislead the authorities.  Mr Kinnier contrasted the attitude and approach of the Appellants with that of the operators in the appeals of T/2013/47 Dundee Plant Co. Ltd [2013] UKUT 525 (AAC) and T/2014/24 LA & Z Leonida t/a E T S [2014] UKUT 423 (AAC).  He submitted that these were both bad cases involving active concealment on the part of operators who had ‘buried their heads in the sand’, (Arnold Transport, above, paragraph 13, category four).  He went on to submit that an alternative sanction, such as curtailment should have been considered, for example a curtailment of 7 to 14 vehicles for 7 days would have had an impact on the Appellant because it would not have been able to use the vehicles to collect skips during that period.

35.      The sixth point made in relation to this ground was that the Traffic Commissioner failed to give any or any sufficient weight to evidence that the Appellant had no desire to benefit commercially from what had happened.

36.      The seventh point made in relation to this ground was that the Traffic Commissioner failed to give any or any sufficient weight to the fact that the Appellant freely gave an undertaking as to a future audit relating to compliance with driver’s hours and tachographs.

 

Discussion

37.      We are satisfied that Mr Kinnier was correct when he conceded that the Traffic Commissioner was entitled to take into account the impact that his decision would have on the industry as a whole.  It seems clear from the notes of the hearing that the Traffic Commissioner had in mind that the Appellant’s conduct called for: “a deterrent” and that it was necessary to send a “massive signal” to the industry generally that failure to monitor and enforce proper compliance with the rules on driver’s hours and tachographs cannot and will not be tolerated.

38.      We accept that the cases of Dundee Plant, (above) and Leonida, (above) were each much worse than the present appeal but that does not mean that they are irrelevant to the exercise that the Traffic Commissioner had to conduct.  On the one hand the Traffic Commissioner had to give appropriate weight to the favourable factors and to the position of the Appellant.  But on the other hand the Traffic Commissioner was duty bound to have regard to the message that the decision in this case was likely to send to the haulage industry generally.  In paragraph 8 of Dundee Plant the Tribunal said that the Traffic Commissioner was faced with a “real dilemma” but was right to take into account the corrosive effect on the operator licensing regime if a decision made it appear to others in the industry that a particular operator was ‘getting away’ with non-compliance.  In the appeal of Leonida (above) the Deputy Traffic Commissioner had had to balance significant adverse factors against significant favourable factors.  In doing so he made it clear that he had to take regulatory action which reflected both sets of factors and acted as a deterrent to ensure future compliance with and respect for the regulatory regime both by the company and by others within the industry.  The Tribunal agreed that this was the correct approach and that the Deputy Traffic Commissioner was right not merely to encourage the company to be compliant in the future but also to send the message to the industry generally that non-compliance carried consequences, which might have a serious impact on an operator’s business.

39.      Bearing these matters in mind we will return to the question of whether suspension was disproportionate in the present case after considering the points raised in support of the second main ground of appeal.

40.      In assessing the Appellant’s reputation and its history of compliance, (paragraph 30 above), we bear in mind that the licence was issued in 2004 and that there does not appear to have been any concern as to compliance until 2013.  However the position since 2013 is very different because problems were identified in 2013 and despite a ‘wake-up’ call in the form of a formal warning in July 2013 effective action was not taken until the latter part of 2014.  In these circumstances we do not see how any great weight could be given to this point.  The problem for the Appellant is that it takes time to build a good reputation but it can be lost in an instant.

41.      The argument advanced in paragraph 31 above was that the Traffic Commissioner made reference to an improved picture as a result of the January and February 2015 tachograph analysis and the employment of Mr Tyler but gave no indication of the weight given to these factors.  It is impossible to conduct the kind of balancing exercise routinely undertaken by Traffic Commissioners with mathematical precision.  However it is important to remember that the call-up letter put good repute and professional competence in issue and that the Traffic Commissioner found that James O’Doherty, the transport manager had lost his good repute, as transport manager, with the result that he was disqualified from acting as a transport manager.  In our view but for the steps taken by the Appellant in advance of the Public Inquiry and but for the fact that those steps had produced favourable results before the Public Inquiry the probability must be that the licence would have been revoked for loss of professional competence and/or loss of good repute.  Our own assessment of the balance between favourable and unfavourable factors is that the latter was sufficient to swing the balance against revocation but they were not sufficient to avoid any form of regulatory action.

42.      The third point made in relation to ground two, (paragraph 32 above), raises the question of what, if any, weight should be given to the fact that the Appellant pleaded guilty to a number of offences and was fined and ordered to pay costs.  Mr Kinnier rightly accepted that this was not a situation in which he could advance an argument based on ‘double jeopardy’ but he submitted that the Traffic Commissioner ought, nevertheless, to have taken into account that the Appellant had been punished for these offences.  While we can understand the initial appeal of this argument we have to question whether it survives more detailed consideration.  It seems to us that the logical conclusion of this argument is that it would require a Traffic Commissioner, in a bad case, to give great weight to the fact that a severe sentence had been imposed following a prosecution for relevant offences.  In our view it simply cannot be right to require a Traffic Commissioner to consider whether it is necessary to avoid revocation, for example, because of the severity of the punishment imposed by a criminal court.  We are satisfied that Traffic Commissioners should have regard to any relevant offences committed by an operator and that they should have regard to any sentence imposed for those offences.  At one extreme that may mean that the provisions resulting in mandatory loss of good repute are engaged.  At the other extreme the nature of the sentence may assist in justifying a decision to take no or very limited regulatory action.  It seems to us that this case, along with many others, comes between these two extremes and that the weight which can be given to the sentence for criminal offences is unlikely to be sufficient to reduce the level of regulatory action justified by the facts of each individual case.  In our view only limited weight can be given to the fact that the Appellant was ordered to pay a fine for tachograph and driver’s hours offences whereas far greater weight should be given to the fact that these offences occurred in 2014 after the ‘wake-up call’ in the form of a formal warning in relation to such offences in July 2013.

43.      The fourth point made in relation to ground 2, (paragraph 33 above), concerned the weight, if any, which the Traffic Commissioner gave to the financial impact on the Appellant of a one week suspension.  Mr Kinnier referred us to a passage in the notes of the hearing, which refers to suspension and very shortly afterwards records: “does not want to fold”.  Mr Kinnier submitted that there is no indication that any consideration was given, as it ought to have been, to suspension of part of the fleet.  As far as we can see there is simply no evidence about the financial impact of a one week suspension.  The fact that there is no reference to the financial consequences of suspension either in the Traffic Commissioner’s notes or in the notes made by the Tribunal Clerk suggests that a full transcript would probably not have added anything significant on the point.  While it is generally appropriate for a Traffic Commissioner, who is considering regulatory action, to give an operator the opportunity to comment on the impact of the different forms of action that could be taken it is for the operator to bring the necessary evidence to a Public Inquiry.  This was considered and confirmed by the Tribunal in Dundee Plant (above) at paragraph 12 and in Leonida, (above) at paragraphs 7 and 13.

44.      As to the argument that the Traffic Commissioner should have considered suspending part of the fleet the short answer is that s. 26(1) of the 1995 Act provides for an operator’s licence to be suspended but it does not give power to suspend part of a fleet. We accept, however, that the Traffic Commissioner could have achieved what Mr Kinnear was suggesting by exercising the power to curtail the number of vehicles authorised to be used under the licence.  As far as we can see from the two sets of notes provided in the appeal bundle there was no evidence before the Traffic Commissioner as to the impact of any form of curtailment on the viability of the business.  In the absence of any evidence on the point we would have been unable to substitute an order for curtailment, even if we had been persuaded that this was the correct course.  In our view it was for the Appellant to ensure that the appropriate evidence was put before the Traffic Commissioner to assist the Traffic Commissioner to decide on the most appropriate form of regulatory action.  In the absence of such evidence operators cannot complain if a Traffic Commissioner does what appears to be appropriate to him having regard to the material available.

45.      The fifth point made in relation to ground two, (see paragraph 34 above), related to the weight, if any, which should be given to the fact that the Appellant had co-operated fully with the investigation and with the Public Inquiry and had not attempted to conceal offences or to mislead the authorities. This raises an interesting point.  We are in no doubt that non-compliance with the regulatory regime and/or failure to co-operate with the Traffic Commissioner and/or DVSA and/or the Police would amount to an aggravating factor, to which, in appropriate circumstances the Traffic Commissioner might give great weight.  Indeed any attempt to conceal material facts or to mislead the relevant authorities would be likely to result in good repute being put in question.  On the other hand we question whether compliance with the regulatory regime and co-operation with the relevant authorities is a favourable factor to which great weight should be attached.  We say that because such conduct is expected and required of all operators and is achieved by the majority.  In our view the main point to be made in this situation is the absence of possible aggravating circumstances rather than the existence of significant favourable factors.  As a favourable factor our view is that it can only carry limited weight.

46.      The sixth point made in relation to ground two, (see paragraph 35 above), was that the Appellant had no desire to benefit commercially from what had happened.  In our view the argument on this point is flawed because it fails to take into account the impact of the Appellant’s actions on other hauliers.  It is important to remember, (see paragraph 11 above), that the investigation in April 2014 commenced because VOSA, as it then was, became aware that drivers were bragging about the number of hours they worked and the amount of money they were making.  Other hauliers who knew or heard about what the Appellant and its drivers were doing would not be privy to the state of mind of those in charge of the Appellant company.  Instead they would be likely to come to the common-sense conclusion that those in charge of the Appellant would only run the risks involved in breaching the rules on driver’s hours and tachographs because of the financial benefit that the Appellant was likely to receive.

47.      The seventh point made in relation to ground two (see paragraph 36 above), concerned the weight to be given to the fact that the Appellant freely gave an undertaking as to a future audit relating to compliance with driver’s hours and tachographs.  When one takes into account the likely consequences of not giving such an undertaking, namely that it would increase the risk of the licence being revoked, and the fact that the Traffic Commissioner indicated that he would be prepared to re-consider the application to vary the licence, after a successful audit, it seems to us that only very limited weight can be given to this point.

Conclusion

48.      In our view whether the submissions in relation to the second ground of appeal are taken individually or collectively there is nothing of sufficient substance to show that a one week suspension of the Appellant’s operator’s licence was disproportionate.  On the contrary in our view it achieved the right balance between the message sent to the industry as a whole, namely that no-compliance will not be tolerated and will have consequences, and the message sent to the Appellant, namely that it cannot take a lax approach to compliance and expect to escape without any significant regulatory action.  In our view nothing less than a one week suspension would have achieved both objectives.

49.      For these reasons the Appeal against the suspension of the licence is dismissed.

50.      The Traffic Commissioner gave the Appellant about one month’s notice of the date on which the suspension was to come into force.  In our view that was sensible and appropriate because the object of the exercise should be that the impact of the suspension is felt by the Appellant and that the Appellant should have an opportunity to mitigate the impact on its customers.  The original period of suspension included the Bank Holiday on Easter Monday, but the Appellant must have understood, when a decision was taken to appeal, that if the appeal was dismissed the suspension might have to be served over a week which did not include a Bank Holiday.

51.      In our view the correct approach, having decided to dismiss the appeal, is to replicate the Traffic Commissioner’s decision as far as reasonably possible.  In particular we consider that we should avoid a course that may appear to ‘punish’ the Appellant for exercising an unfettered right to appeal to the Tribunal.  In our view the best way to achieve that objective, given that the Appellant has known since 16 July that the appeal would be dismissed, is to direct that the period of suspension is to commence at 0001 on Saturday 29 August 2015 and to end at 2359 on Friday 4 September 2015.  We appreciate that this gives the Appellant less than 28 days notice.  If shorter notice causes a problem the Appellant has permission to put forward a reasoned case for having up to 28 days notice.

 

 

 

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

12 August 2015