Neutral Citation Number: [2010] UKUT 61 (AAC)

Appeal No. T/2009/513
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Tom Macartney
Deputy Traffic Commissioner for the 
Scottish Traffic Area Dated 18 September 2009

Before:
Frances Burton, Judge of the Upper Tribunal
                                 Patricia Steel, Member of the Upper Tribunal
George Inch, Member of the Upper Tribunal

Appellant:
			PTARMIGAN TRANSPORT SOLUTIONS
                                T/A BANKFOOT BUSES

	 
Attendances:

For the Appellant:           Mr G. Littlewood

Heard at:	The Eagle Building, 215 Bothwell Street, Glasgow G2 7EZ
Date of hearing:	22 January 2010
Date of decision:	19  February 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED

REASONS FOR DECISION

1.	This was an appeal from the Decision of the Deputy Traffic Commissioner for the Scottish Traffic Area dated 18 September 2009 when, having determined that the Transport Manager was no longer of good repute, he revoked the Appellant’s PSV licence under s.17(1) and Schedule 3 of the Public Passenger Vehicles Act 1981 with effect from 23.59 hours on 15 October 2009, on the grounds that the operator no longer satisfied the requirements of good repute, professional competence and financial standing, and under s.28 of the Transport Act 1985 disqualified both Directors of the Appellant company, as well as the operator company itself, from holding or obtaining an operator licence in any Traffic Area for an indefinite period. He also determined that, under s.39 of the Transport (Scotland) Act 2001, a penalty of £550 for each disc in possession (3 x £550, a total of £1,650) was payable to Scottish Ministers by 23.59 hours on 15 October 2009.
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 (trading as Bankfoot Buses) has held a Standard National PSV operator licence since 16 May 2007. At the time of the most recent public inquiry, at Edinburgh on 21 August 2009, the operator was authorised for 3 vehicles, with 3 discs in issue, the operating centre and correspondence address was Arran House, Arran Road, Perth PH13 DEZ, and the Directors of the operator company were Mr Stuart and Mrs Sarah Ann Newing-Davis. Mr Newing-Davis was also the operator’s Transport Manager.
(ii)	The operator had been called to a public inquiry on 22 January 2009 to consider regulatory action in relation to repute, financial standing and alleged failure to operate registered local services. There had been adverse reports from VOSA, the Public Transport Manager of Perth and Kinross Council and also from Stagecoach Scotland East. The Traffic Commissioner’s Decision was subsequently appealed to the Transport Tribunal which remitted the case for rehearing by a Deputy Traffic Commissioner, following a hearing on 15 May 2009. As a result the operator was called to a fresh public inquiry before Mr Tom Macartney, Traffic Commissioner for the NE Traffic Area, acting as a Deputy Traffic Commissioner for the Scottish Traffic Area. Mr Geoffrey Littlewood, Transport Consultant, acted for the operator, and Mr Newing-Davis was present on behalf of the company.
(iii)	For VOSA, TE James Cobban gave evidence of an incident in which he had stopped a PSV coach belonging to the operator on 30 July 2008 at Aberfeldy. The driver had been unable to produce any tachograph charts save that for the current day, although the outstanding charts were subsequently submitted. At this incident the TE had noticed that the coach, which was carrying clients of Splash (a rafting company) was displaying a colour photocopy of an operator’s disc (i.e. a counterfeit disc). A Director of the operator company was therefore sought out for interview the same day and Mr Newing-Davis was interviewed under caution. At this interview he stated that he had applied for an increase in authorisation to 7 vehicles, had discussed this variation on several occasions with the Leeds licensing staff in April 2008, and had gained the impression that his increase was imminent, so had commenced operation on that basis, using a colour photocopy of a licence disc. Examination of the operator company’s tachographs had revealed that at least 9 different vehicles had been used to service the Splash contract and it was the TE’s view that that contract could not, as a matter of fact, have been performed with only 3 vehicles (which was at the time the operator’s authorisation). There was also evidence of the frequent use of more than 3 authorised vehicles which was evident from late April or early May until 30 July 2008 when the false ‘O’ licence was detected at Aberfeldy.
(iv)	For Perth and Kinross Council, Mr Andrew Warrington gave evidence that during the period 3 October 2008 to 17 December 2008 the Appellant company had displayed a blatant disregard for their commitment to operating registered bus services in a manner which potentially caused inconvenience to bus users. Mr Warrington also considered that the free services which had not displayed operator’s licence discs disregarded the Council’s guidance, that ignoring bus stop allocations had caused traffic congestion and that the use of vehicles with a livery similar to Stagecoach’s, and bearing the lettering “Stag coach”, was questionable, thus bringing the Appellant company’s repute into question.
(v)	Monitoring had been undertaken on 19 August 2008, 20 August 2008, 21 August 2008, 30 August 2008 and 2 September 2008 which had revealed that Services 1A, 4A and 74 were not operating. There had also been concern about the practice of asking passengers to make a cash donation into a bucket for an unregistered charity instead of paying fares, also about “free” buses on Thursday evenings in December 2008, and about the service of refreshments on board including mulled wine. There had been further monitoring between 3 October and 17 December 2008 which had noted that Service 22A had not operated on 14 December 2008 and Service 74 between 3 October 2008 and 7 November 2008. The Operator had claimed that the services not operated were due to driver shortages and that driver “problems” had meant some Service 22 runs had been missed. In cross-examination Mr Littlewood had accepted that in general Mr Warrington’s comments were correct, that the increase from 3 to 7 discs was not authorised and had commented that the dispute which had developed with Stagecoach was a “tit for tat” situation.
(vi)	The Deputy Traffic Commissioner had then questioned Mr Newing-Davis. Mr Littlewood had suggested to Mr Newing-Davis that some of his actions had displayed a disregard for road transport law, with which Mr Newing-Davis had agreed. However when questioned by the Deputy Traffic Commissioner Mr Newing-Davis accepted that the services shown on the tables had not run. He agreed he had operated a larger fleet than that for which he was authorised and admitted to having 21 buses and 17 drivers in relation to 3 discs. In addition he could not explain how this could also be compatible with his alleged reason for not operating some registered services due to driver shortages. He was unable to identify the date when the false disc was created using the colour photocopier, although thought it might be between 18 May 2008 and 30 July 2008.
(vii)	The Deputy Traffic Commissioner took up with Mr Newing-Davis the issue of the non-receipt of all the documents which should have alerted Mr Newing-Davis to the public inquiry called for 22 January 2009, in respect of which the Transport Tribunal had allowed an appeal, as Mr Newing-Davis had been adamant on appeal to the Tribunal that he had not been notified and had had no chance to defend himself. The Deputy Traffic Commissioner had clearly not believed Mr Newing-Davis’ insistence that, although he had received the initial letter of 30 September 2008, warning that a public inquiry was about to be called, he had not received the calling in letter (either as operator or Transport Manager) dated 19 December 2008 although this had been sent by recorded delivery; he also insisted that he had not received the supplementary bundle of evidence sent by first class post on 11 January 2009. He maintained this position despite the fact that the despatch of 19 December 2008 was recorded as being signed for (by someone unidentified) on 20 December 2008, and despite his admission that no other mail to him had been lost to his knowledge. On the contrary he insisted that the duplicate brief, in 2 separate bound bundles, had been “leaked” to him in February 2009 by an unnamed individual in Perth and Kinross Council. The Deputy Traffic Commissioner was also adversely impressed when Mr Newing-Davis had admitted that he had misled the Transport Tribunal on appeal on 15 May 2009 when it was claimed on his behalf that he could have attended the public inquiry on 22 January 2009 if he had been notified that it had commenced because he could have been present within half an hour, since he had agreed with the Deputy Traffic Commissioner that the journey time from his operating centre to central Edinburgh would have been at least an hour and a quarter on a good day.
(viii)	The Deputy Traffic Commissioner had also put to Mr Newing-Davis that he must have known of the existence of the public inquiry from the usual contact from 10-12 solicitors and transport consultants who normally contacted any operator listed for public inquiry offering their services, to which Mr Newing-Davis had replied that he had had no such approaches at that time. Mr Newing-Davis had also persisted that he had also never received the “track and trace” details of the missing duplicate brief apparently signed for at his building but never received by him, despite repeated requests for it by his MP. However it appeared that these details had been supplied by Colin Flower on 30 January 2009.
(ix)	Evidence was given on Mr Newing-Davis’ behalf by a Mrs P. Menzies (dealing with her perception of harassment by Stagecoach) and by Mr P. Feasby (to the effect that the similarity of uniforms worn by Bankfoot Buses’ drivers to those of Stagecoach was not used with intention to deceive the public that they were driving a Stagecoach vehicle. However photographs of a bus or buses in Stagecoach livery taken on 16 August 2008 (with different drivers) had also adversely impressed the Deputy Traffic Commissioner as Mr Newing-Davis had given evidence that he had only used the single vehicle which had had “Stag coach” painted on the front and side on 19 May 2008 for 24 hours or less. Mr Newing-Davis’ explanation had been that he must have guessed at the date of 19 May 2008 when asked for that date. However the Deputy Traffic Commissioner had noted that Mr Newing-Davis additionally could not remember when he had purchased the vehicle nor made any note of the dates and times when it had been used, although these issues had been flagged up in the duplicate brief in the operator’s possession since February 2009.
(x)	In his closing address at the public inquiry the Appellant company’s representative, Mr Littlewood, submitted that Mr Newing-Davis was “a lovable rogue” who was unaware of the serious nature of some of his actions but that he had since become aware of the serious nature of some of his actions and had learned his lesson, requesting that he be granted just one disc in order to run Service 22.
(xi)	The Deputy Traffic Commissioner nevertheless found against the Appellant in every respect set out in sub-paragraphs (iii) to (x) above, and additionally against Mrs Ann Newing-Davis as a Director (although Mr Newing-Davis had represented her as not being a Director of the Appellant company until the Deputy Traffic Commissioner had confronted him with the Companies House documents showing that she was in fact the Company Secretary and the only other Director apart from himself). The Deputy Traffic Commissioner did nevertheless weigh in the balance the positive factors in favour of the Appellant company: (1) that it was the company’s first public inquiry; (2) that the operator employed a number of staff and had been trying to carry on a business providing a service to the public; (3) that the operator had established a rapport with a number of local people; (4) that Mr Newing-Davis felt frustration at the difficulties experienced with a rival operator – but that he had not provided evidence of such harassment (as Mrs Menzies’ evidence had not been sufficiently clear or detailed). However he also noted that the registered services record had been “dreadful”. He had then taken the action referred to at paragraph 1 above, including disqualifying Mrs Newing-Davis who had declined to attend the public inquiry (although aware from the earlier public inquiry of the issue to be considered of her disqualification as well as that of Mr Newing-Davis).
3.	At the hearing of the appeal the Appellant company and Mr Newing-Davis were again represented by Mr Littlewood. Mr and Mrs Newing-Davis attended.
4.	Mr Littlewood began by questioning the accuracy of the transcript of the public inquiry. He said that at p.412 (paragraph 13 of the Deputy Traffic Commissioner’s decision) the Deputy Traffic Commissioner had omitted to record that the only reason that Service 22 had not run on one or more occasions because the driver had been taken ill, otherwise the service had run without fail. We pointed out to Mr Littlewood that if the transcript did not record such a statement it had probably not been said as the transcripts were professionally prepared from the official tape recording by a specialist service. We also drew his attention to pages 359-360 of the transcript where Mr Newing-Davis had specifically confirmed that the services detailed by Perth & Kinross Council (in Table 1, page 5 of their report) and the statement “did not operate” was “accurate”. Mr Littlewood nevertheless insisted that “that was an incorrect answer” as he had not been given sufficient time to respond, and Mr Newing-Davis now wished to draw to our attention that any short runnings were due to short notice cancellations, as otherwise the 22 had operated in “an exemplary way”. We pointed out that there was nothing on the face of the transcript to show any suggestion of an insufficient time for Mr Newing-Davis to answer but Mr Littlewood merely insisted “I was there”. We therefore asked Mr Littlewood why he had not intervened to invite contradiction of the incorrect answer, to which he said that he had but that the transcript was inaccurate and that this was not the only example: he contended that it had never been said at the earlier appeal that it was only half an hour from Perth to Edinburgh and/or this must have been misunderstood or misheard.
5.	In respect of this comment we were able to point out to Mr Littlewood that we were quite sure that the  disputed statement had been made as 2 members of the presently constituted Tribunal had sat on the earlier appeal to the Transport Tribunal and had been present when the third member had also examined his notebook: all 3 members had clearly recorded the Appellant company’s advocate’s statement and that we were therefore unable to accept Mr Littlewood’s or Mr Newing-Davis’ submissions on this point.
6.	Mr Littlewood’s next point was that he objected to Stagecoach’s harassment and that this had provoked a “tit for tat” culture between drivers. We pointed out to Mr Littlewood that there was on one file a clear statement in an email from the operator company to Mr Warrington that the writer was “currently unable to comply” with the council’s request “not to use the 1 stance in Mill Street. When the X27 starts arriving no more than 3 minutes before its departure time on a regular basis, we will consider complying with your request” (page 466 of the hearing bundle). There was a similar statement in another email to Mr Warrington on page 429 of the hearing bundle in which the Appellant company states “You mention having no option but to contact the TC: I think it would say “bring it on” as my own attempts to involve her have led nowhere. Bankfoot Buses is more than happy to abide by both the law of the land and whatever extra regulations you see fit to impose, but I am not prepared to do so if other operators are consistently allowed to flout the rules”.
7.	Mr Newing-Davis again intervened to elaborate, stating that it had become clear there was bias against Bankfoot by Mr Warrington, leading to commercial disadvantage. He had therefore decided that as he could not use particular bus stands due to the instruction of Mr Warrington, he would use these stands at a time when in his view they were free and was able to do so within a 7 minute window of when such a stand was empty. He accepted that this ignored regulations.  He further reiterated that it was unfair that, when a large operator was allowed to flout regulations, the small operator who used a stand temporarily was immediately called to a public inquiry. He said that Stagecoach had been “boxing Bankfoot vehicles in” for 18 months, but none of the authorities had listened to his concerns. He had added that if he had not had other businesses to cross fund the bus operations he would have gone out of business due to these tactics. Mr Littlewood added that when the Appellant company had asked for meetings with Stagecoach they had been “fobbed off” and Mr Warrington, the Council Transport representative, had done nothing to help. Mr Newing-Davis denied that this use of other operators’ stands caused “chaos”, as he had only used the stands briefly since there was no alternative if the authorities would not help. Mr Warrington had said he would consider a Traffic Regulation Order but nothing had happened.
8.	We drew Mr Littlewood’s attention to his grounds of appeal which were:
“1.	Unjust decision based upon supportive evidence
2.	Decision founded on inaccurate detail.
3.	Deformation (sic) of character.
4.	False claim by Stagecoach Perth, of anti-competitive practice”
and asked him to address us on grounds 1 and 2 (which appeared to us to be the only relevant grounds).
His response was that (as previously stated) the registered services did operate and that the Deputy Traffic Commissioner had not given Mr Newing-Davis sufficient time to explain himself. We asked Mr Littlewood if he had not had any questions to ask Mr Warrington about his crucial report, as there appeared to be no cross-examination on this, which we would have expected if it was contended that the registered services had run. Mr Littlewood instead reverted to the contention that the Leeds administration office had told Mr Newing-Davis on 14 January 2008, and on a number of later occasions, that his application was under active consideration.  He added that there had never been any indication that it was not going to be granted: on the contrary, he said, there had been active encouragement to believe that it would be granted imminently. We pointed out to Mr Littlewood that on p.377 of the bundle, at letter B, he had acknowledged to the Traffic Commissioner at the public inquiry that his client had “made the mistake in literally putting the horse in front before it got under starter’s orders, as it were, and he undertook various operations which he now realises, with regret, that he should not have done”. Mr Littlewood, however, countered that 3 people had said that the discs were “going out”. We pointed out that as the discs had not arrived Mr Newing-Davis should not have assumed he could start operating, and had there been any query as to whether the variation should be granted there would have been either a formal refusal or a call to public inquiry to consider the increase.
9.	Mr Littlewood’s next point was that the Deputy Traffic Commissioner had used the word “liar” too often in his Decision. He said not in all his years as a Transport Consultant had he heard so much disbelief. We pointed out to Mr Littlewood that there was hardly insufficient basis for doubting Mr Newing-Davis’ word. For example he is recorded in the transcript as saying at p.564 that but for the annoyance caused by the other operator (by whom we presumed he meant the previous contractor to the raft company) the coach carrying the forged disc “would have gone with no disc” and that this was hardly the answer of an honest law-abiding operator. We also reminded Mr Littlewood that the Deputy Traffic Commissioner had had the benefit of seeing and hearing Mr Newing-Davis give evidence on those matters on which he had concluded that Mr Newing-Davis had lied.
10.	Mr Littlewood then indicated that he wanted to call Mr Gordon Banks MP to give evidence that he had been involved in attempting to secure the evidence of the track and trace receipt for the Traffic Area Office’s despatch of 19 December 2008, which it seemed that the Deputy Traffic Commissioner had not believed. However we pointed out that we were not in a position to admit fresh evidence which had been available at the public inquiry but not called there, and that in any case Mr Banks had not been notified as a witness, representative or observer at the appeal hearing but that there was already evidence on our file (as recorded in paragraph 2(viii) above) that the details of the track and trace had in fact been supplied.  
11.	Mr Littlewood persisted, nevertheless, that the Transport Tribunal had believed Mr Newing-Davis when he had stated that he had not received the documentation for the public inquiry of 22 January 2009. We nevertheless pointed out that, as 2 members of the Tribunal which had sat in 2009 were again sitting on the present appeal, we were more than usually aware that the fact that that Tribunal had given Mr Newing-Davis the benefit of the doubt did not bind the Deputy Traffic Commissioner who had come to a different conclusion at the rehearing which had been directed precisely so that the matter might be thoroughly investigated.
12.	Mr Littlewood’s next point was that the Appellant company’s buses were bought from a bus disposal company which sold them in a livery accepted by Stagecoach for resale of reclaimed vehicles: the practice was to alter the livery sufficiently to distinguish it from Stagecoach’s. There had been many such purchases and there had been no problems previously. He said the vehicle was taken off the road as soon as requested by Stagecoach’s solicitors. We pointed out that the vehicle complained of had been used on a public registered service and therefore could have confused the public, and that it appeared that this vehicle had been the one mentioned in the Appellant company’s email on p.466 of the bundle, which referred to their “Stagecoach liveried” bus using a Stagecoach stand. Mr Littlewood disputed any potential for public confusion and produced the coloured photograph shown to the Deputy Traffic Commissioner which he said had made this clear. He said the Council was “harassing the little man”, against the spirit of the legislation.
13.	Mr Littlewood’s next point was that the Deputy Traffic Commissioner’s determinations were basically unjust and as Mr Newing-Davis had acknowledged he had done wrong he should have been given the opportunity to prove his worth as attested by his MP’s support and  by supportive passengers. To this Mr Newing-Davis again intervened to add that he was a prominent member of his local church and he would have brought evidence of his fund raising for that institution if he had realised he was going to be thought a liar. Mr Littlewood pressed for monitoring of the licence on a monthly basis and no disqualification as this affected the operator’s reputation, although disqualification had not been raised in his grounds of appeal.
14.	We carefully considered Mr Littlewood’s submissions (and all Mr Newing-Davis’ additions and interjections).  However, first, we had to conclude that such minor additional points as had been made to the material already available in the hearing bundle should have been made at the public inquiry of which we had the benefit of the verbatim transcript. We were unable to see any indication of the Deputy Traffic Commissioner’s alleged failure to give Mr Newing-Davis the opportunity to explain himself and expressly noted that there was no indication of interruptions save to seek clarification. As Mr Newing-Davis had had professional representation we were unable to understand why, if further points existed to be made, this was not done at the public inquiry, and crucially, why Mr Littlewood did not cross-examine Mr Warrington on his report if the content was contested. We could see no suggestion that there was missing text or opportunity for an inaccurate transcription as the text flows sequentially. 
15.	Against the suggestion that the Deputy Traffic Commissioner was somehow unfair to the Appellant company or Mr Newing-Davis, we have to set the damning admissions by Mr Newing-Davis of (i) use of a forged disc, (ii) clear statements that he would not abide by the law unless the alleged harassment of Bankfoot by Stagecoach was stopped, (iii) use of more vehicles than those authorised, (iv) unapproved use of Stagecoach bus stands, and (v) use of a bus in a livery and identified as “Stag coach” which could give rise to confusion by the public. Further the account of non-receipt of the documentation for the public inquiry of 22 January 2009 is unsatisfactory. The Deputy Traffic Commissioner did not accept Mr Newing-Davis’ evidence, and his veracity was not assisted by the Deputy Traffic Commissioner’s discovery that Mr Newing-Davis had not even given an accurate answer to the question as to whether his wife was a Director of the Appellant company until confronted by Companies House documentation. The above is quite enough for the Deputy Traffic Commissioner to have determined that there were grounds to revoke for repute and professional competence as Mr Newing-Davis was also the Appellant company’s Transport Manager. There appears to be no appeal against the fact that the revocation was also on the basis of the finding that the Appellant company was not of sufficient financial standing.
16.	With regard to disqualification, we are not surprised that the Deputy Traffic Commissioner considered this a necessary addition to the revocations since the various deliberate instances of defiance of law and good practice were blatant and pre-meditated.  There is no place in the industry for those who attempt to deceive Traffic Commissioners at public inquiry, including involving the forgery of an ‘O’ licence disc. 
17.	With regard to the financial penalty, Mr Warrington’s report and the failure to substantiate any challenge to it indicate that the Deputy Traffic Commissioner’s determination in this respect was well founded.
18.	Accordingly we dismiss the appeal.

Frances Burton
Judge of the Upper Tribunal
19 February 2010