Neutral Citation Number: [2010] UKUT 256 (AAC)

Appeal No.  T/2010/19
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Lester Madrell DeputyTraffic Commissioner for the 
Western Traffic Area Dated 1 February 2010

Before:
Frances Burton, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
George Inch, Member of the Upper Tribunal

Appellant:                            AWE GRAB HIRE LIMITED

	 
Attendances:
For the Appellant:                John Lyons

Heard at:	  Victory House, Kingsway, London WC2B 6EX
Date of hearing:	  14 June 2010
Date of decision:	  13 July 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED and the orders of the Deputy Traffic Commissioner will come into effect at 23.59 hours on Sunday 15 August 2010.

                                    REASONS FOR DECISION

1.	This was an appeal from the Decision of the Deputy Traffic 
Commissioner for the Western Traffic Area dated 1 February 2010 when he revoked the Appellant Company’s Standard National Goods Vehicle operator’s licence under s 26(1)(a), (b), (c)(i), (ii), (d),(e) and s 27(1)(a) of the Goods Vehicle (Licensing of Operators) Act 1995 with effect from 23.59 hours on 31 March 2010, and disqualified Nicholas Rowe, Director, and the Appellant company from holding or obtaining an operator’s licence in any Traffic Area for 6 months from 1 April 2010.  The grounds for these sanctions were loss of repute, use of an unauthorised operating centre, breach of conditions of the licence, convictions of the licence holder and its servants or agents, repeated convictions and unfulfilled undertakings.

2.	The factual background appears from the documents, the transcript
     of the public inquiry and the written Decision of the Deputy Traffic Commissioner and is as follows.

(i)	The Appellant company was granted a standard national goods vehicle operator’s licence on 20 April 2007 for one vehicle and no trailers.  At the time the Directors of the company were Philip Dicker and Andrew William Eavis. Philip Dicker was also its Transport Manager.  On 31 March 2008 Nicholas Rowe became sole Director, and Philip Dicker remained Transport Manager.   In January 2009 Nicholas Rowe’s partner, Louise Field, became a Director.
(ii)	The Appellant company was called to a public inquiry at Bristol on 20 January 2010, to consider convictions of both the company and Nicholas Rowe, together with breaches of licence conditions and undertakings, change in circumstances, repute, financial standing and professional competence.  Two Transport Managers (Philip Dicker, Transport Manager to April 2009, and Paul Jacobs, Transport Manager from  August 2009) were also called. The Appellant company was represented by Elizabeth Caple, solicitor, and Paul Jacobs attended unrepresented.  Philip Dicker did not attend and there was some doubt as to whether he had received notification of the public inquiry as he had not called for a recorded delivery letter sent to him to back up the First Class letter already sent.  The Deputy Traffic Commissioner determined that it was appropriate to proceed nevertheless, in the interests of the other parties.  The Director Louise Field did not attend. 
(iii)	At the hearing the facts were largely not in dispute. Evidence was given by former Traffic Examiner Roger Beever in accordance with his report, and by Nicholas Rowe and Paul Jacobs.  The Deputy Traffic Commissioner determined that (a) at all material times Nicholas Rowe was either formally a Director  or (since otherwise there was no change in his control) a “shadow director”; (b) Nicholas Rowe controlled another transport company, Creative Logistics and Solutions Limited, which had no ‘O’ licence but which used the Appellant’s licence to operate; (c) David Pearce, a driver employed by Creative Logistics, used a vehicle of the Appellant company’s, registration number NX07DKE, without a licence or the use of a digital tachograph card (although the vehicle was fitted with a digital tachograph machine); (d) the Appellant company pleaded Guilty to use of an unauthorised operating centre; (e) Nicholas Rowe admitted failure to keep tachograph records and breaching the 4.5 hours driving  rule; (f) with one exception Nicholas Rowe had persistently avoided VOSA interviews; (g) there were ineffective arrangements for Transport Manager services until Paul Jacobs was appointed in August 2009 but that obvious omissions then continued (no Drivers Defect Reporting arrangements, no PMI records, continuing centrefold errors and weekly/fortnightly rest issues); (h) Nicholas Rowe had a penalty notice for mobile phone use while driving, which was not disclosed to the traffic Commissioner because Nicholas Rowe did not know that it was obligatory to do so and had even texted TE Beever while driving; (i) neither Nicholas Rowe nor the Company notified convictions received at Swindon on 24 April 2009, due to the same ignorance of the obligation to do so; (j) the Transport Manager Philip Dicker was an ineffective controller of the transport operations, having only periodically checked the (partial) tachograph records – although this seemed not to have led to mechanical condition failures; (k) vehicles not specified on the licence were used; (l) a prohibited vehicle had been driven.
(iv)	As a result of the facts found the Deputy Traffic Commissioner had determined that Nicholas Rowe had clearly had no knowledge of operator licensing when he had taken over the Appellant company in the spring of 2008.  He nevertheless gave Nicholas Rowe due credit for previous good character, for using hired vehicles so that maintenance was not an issue, for securing the services of Paul Jacobs as a capable replacement for Philip Dicker and for thus improving compliance, for obtaining a CPC pack and taking the decision to sit the examination himself, for offering ongoing assurances (such as of attending compliance awareness courses and refresher training, and using external auditing services).  However, these positive factors clearly did not dispel the Deputy Traffic Commissioner’s concern (based on his observation of Nicholas Rowe giving evidence) that he was not a credible witness and that the essential element of trust on which the goods vehicle licensing system is based was absent from the relationship between the Appellant company and the Traffic Commissioner.
(v)	In all the circumstances the Deputy Traffic Commissioner had concluded that the answers to the Bryan Haulage 2002/217 and Priority Freight 2009/225 questions must be answered “Yes” ie that the Appellant company’s conduct was so bad that it must be put out of business and that if allowed to continue it would be unlikely to be compliant.  With regard to the second question, the Deputy Traffic Commissioner made clear that he had given some thought and analysis to his conclusions, based on his observation of Nicholas Rowe as a witness, and had determined that “his demeanour, body language and attitude all belied his words”.  The Deputy Traffic Commissioner had then made the directions set out in paragraph 1 above, making no finding about Philip Dicker who had not been present, and finding that financial standing could probably have been proved if a necessary deposit account had been opened in the name of the Appellant company.  He had not, however, discounted any of the convictions of April 2009.

3.	At the hearing of the appeal the Appellant company was
represented by Mr John Lyons, its new Transport Manager,   who had, since the public inquiry, replaced Paul Jacobs.  He told us that he was a National and International CPC holder, who had been 22 years in transport, and had been in place with the Appellant company since April 2010.   He conceded that Nicholas Rowe had “made a mess of things” but submitted that he had also “done something about it”.  He told us that he personally was a self employed transport consultant and that he would like to save the operator company and the 5 jobs involved, which were at stake if the company could no longer operate.  He added that, even if imperfectly, Nicholas Rowe had “sharpened up his act” after the offences.   He accepted that Louise Field had experience only of van operation, so that her experience of operator licensing was limited, and pointed out that his predecessor, Paul Jacobs, had lived at a distance from the Appellant company’s centre of operations, which was why appointment of someone more local had always been intended and had been mentioned at the public inquiry.  

4.	We asked Mr Lyons where the Deputy Traffic Commissioner had
 been “plainly wrong” , since with such a catalogue of defects it must appear to any Deputy Traffic Commissioner that loss of repute and revocation must be plainly right.   Mr Lyons responded that the fact that the Appellant company was now operating compliantly on a stay with himself in place as Transport Manager must be some indication of trust in the company.  He added that they now had a £350,000 contract and were capable of operating entirely correctly.

5.	We cannot agree with Mr Lyons that such presently compliant 
operation is capable of wiping out the major infractions in the immediate past.  We could take no other view but that the Appellant company richly deserved the revocation and disqualification, which latter sanction was, however, only for 6 months, and must be regarded as fairly lenient, given the seriousness of the lack of knowledge and therefore of compliance, the convictions and the tachograph offences.  Only the lack of maintenance issues (as the vehicles were hired) was a really positive factor in the Appellant company’s favour.   We could not agree with Nicholas Rowe’s grounds of appeal in which he claims that the Deputy Traffic Commissioner had given insufficient credit for his contrition, apology, assurances, cooperation and good character reference from his Transport Manager, since it is clear to us that the Deputy Traffic Commissioner gave generous explicit credit where he could, and it is a fact that both the Appellant company and Nicholas Rowe have currently lost their repute.

6.	In all the circumstances we cannot allow the appeal from the 
Deputy Traffic Commissioner’s decision, which, contrary to Nicholas Rowe’s grounds of appeal, was not too harsh by any means in the context of the facts found and largely undisputed.  However if the Appellant company’s transport operations are now to be properly managed by Mr Lyons, and Ms Field is in place as a Director, it is possible that the Traffic Commissioner might reasonably entertain an application for an interim licence for the one larger vehicle that is required, if, that is, the Appellant company can convince the Traffic Commissioner that a new leaf has really been turned over, reversing the Deputy Traffic Commissioner’s existing adverse impression.  

7.	In the meantime the appeal is dismissed and the orders of the 
Deputy Traffic Commissioner will come into effect at 23.59 hours on Sunday 15 August 2010.

                                                      Frances Burton
                                                      Judge of the Upper Tribunal
                                                      13 July 2010