[2024] UKUT 44 (AAC)

In his Skeleton Argument, Mr Finnegan set out three grounds of appeal, as follows:

Mr Finnegan expanded on grounds one and three as follows:

In his Skeleton Argument, Mr Finnegan argues that the ‘false statement’ ground for revocation in general and for loss of repute in particular should be ignored on the basis that a statement on the application for a new operator’s licence that the sole trader licence would be surrendered was not a false statement when it was written. Further, at its height, the omission on the part of the Appellant to surrender the licence could only amount to a failure to observe an undertaking on the licence.

We have noted that the Respondent has not provided any evidence to us to corroborate the submission that the Appellant had made or procured to be made a false statement of fact when he declared that his sole trader licence would be surrendered on the subsequent grant of a goods vehicle operator’s licence to a partnership which involved him as a partner. There is a robust basis to allow this aspect of the appeal to the extent that the Respondent argues that the failure to surrender the sole trader licence, after the making of a statement to that effect, renders the initial statement false, and goes to the conclusion that the Appellant no longer satisfies the requirement to be of good repute. If there is no evidence to support this aspect of loss of repute then the ‘false statement’ aspect of that ground should fall away. We have not forgotten that the burden of proof is on the Respondent – see paragraphs 52, 60 and 67-71 of the decision of the Court of Appeal for England and Wales in Muckit ((2005) EWCA Civ 1124).

If we did not know what was said about the surrender of the sole trader licence at the time of the making of the application for the licence for the partnership, we do know about what was said and done about the surrender of the sole trader licence in the period immediately prior to that.

We know that the Respondent made a formal request to the Appellant surrender the sole trader and, in response, the Appellant asked why he was required to do so. When he was asked, in response, why the sole trader licence was still required, given the change in the business entity, the Appellant did not reply within the specified date. This led to the issue of the PTR letter to which the Appellant, once again, did not reply.

The revocation letter was then issued. No request was received for the Department to review its decision, nor was an appeal submitted (within the prescribed time limits for making an appeal) against the decision to revoke the sole trader’s licence or against the grounds for that revocation. The appearance was that the Appellant had abandoned the sole trader licence.

An application to surrender the sole trader licence was received in the Department. We have no doubt that this action was prompted by the fact that, by that stage, the partnership had received a PTR letter.

In his Skeleton Argument, Mr Finnegan has submitted that the Appellant ‘… reasonably concluded that not responding to the TRU was indeed an option and in doing so would allow the TRU to take the course which he ultimately was content with, save for the decision on his repute.’

We are of the view that the Appellant’s attitude towards the regulatory requirements relevant to his holding a goods vehicle operator’s licence is redolent of ambivalence and indifference. It is clear that he could and should have taken advice from his partner about what he was being asked to do, its context and what might be an appropriate response. His failure to engage with the Respondent after being warned of the consequences of an omission to engage, merited a strong response. In paragraph 13 of his Skeleton Argument, Mr Finnegan has conceded that ‘That the sole trader licence ought to have been revoked … is beyond doubt.’ We agree with that concession.

It is the case, however, that revocation was not the end of the matter. The Respondent also decided that the Appellant could no longer satisfy the requirement to be of good repute. There were two evidential aspects to this conclusion. The first was the ‘false statement’ aspect. We have dealt with that above.

The second, and the only remaining aspect, was the failure to respond to correspondence with the Department. Did that merit a finding that the Appellant had lost his repute in addition to losing his licence? In paragraph 13 of his Skeleton Argument, Mr Finnegan notes that the Appellant:

In paragraph 14, Mr Finnegan observed that the sole trader licence had remained dormant with no vehicles specified on it. The change of business entity meant that the Appellant was no longer operating a a sole trader and the inactive status of the licence meant that ready for surrender.

In Crompton (T/a David Crompton Haulage) v. Department of Transport North Western Area [2003] EWCA Civ 64 (31 January 2003), the Court of Appeal for England and Wales said the following at paragraph 19(5):

“That brings us back to the 1995 Act, which also contains no definition of good repute, but it is noticeable that in schedule 3 the opening words of paragraph 1(2) dealing with a company are more restrictive than the opening words of paragraph 1(1) dealing with an individual. When a traffic commissioner is considering if an individual is of good repute he can have regard to “any matter”, but if he is considering a company he must confine himself to “all the material evidence”. The difference in wording is a little surprising but Parliament cannot have intended a traffic commissioner ever to have regard to immaterial evidence, so the conclusion must surely be that the schedule requires the traffic commissioner when considering alleged loss of repute to focus on matters relevant to the individual’s fitness to hold a licence, bearing in mind –

“(a)

that an existing licence is a possession safeguarded by Article 1 of the First Protocol, and –

“(b)

that if loss of repute is found the inevitable sanction is revocation, possibly followed by an application for a fresh licence which may or not be granted.”

“There must therefore be a relationship of proportionality between the finding and the sanction, and that relationship has a direct bearing on the approach to be adopted in any set of circumstances to the question of whether or not the individual has lost his repute.

“All of that seems to me to be in the end non-contentious.’

He added, at paragraphs 24 and 25:

We are of the view that the Head of the TRU’s approach to the question of repute in the instant case is equally flawed. No consideration was given to the positive aspects of the case, as was noted by Mr Finnegan. More significantly, no consideration was given to the proportionality of the sanction. To repeat what was said above, the Appellant adopted a careless and somewhat dismissive attitude to the regulatory requirements and the obligation to respond to the Department’s correspondence. In our view, the appropriate respond to those omissions was to revoke the Appellant’s goods vehicle operator’s licence, a sanction which the Appellant, through his representative, now accepts.

In our view, the decision to find that the Appellant no longer satisfied the requirement to be of good repute was wholly disproportionate and sufficiently so to render this aspect of the decision of the Head of the TRU to be ‘plainly wrong’.

We confirm that the substantive decision of the Head of the TRU to revoke the Appellant’s licence was correct and is upheld. We determine however, that there was no evidential basis to support the following ground:

Further, and more significantly, confirm that we have no hesitation in concluding that the decision of the Head of the TRU to decide that the Appellant no longer satisfied the requirement to be of good repute was plainly wrong.

We turn to the appeal referenced UA-2021-000275 Bell Transport.

We can deal with this appeal in short order. The basis for the revocation of the licence in this case was as follows:

The evidential basis for this ground was the determination by the Head of the TRU in the appeal referenced UA-2023-000508 Robert Bell that Mr Robert Bell, a partner in Bell Transport, no longer satisfied the requirement to be of good repute. Having found that the decision of the Head of the TRU to decide that the Robert Bell no longer satisfied the requirement to be of good repute was plainly wrong, then the basis for the revocation of the licence of Bell Transport falls away. Accordingly, the appeal is allowed.

We add that we took evidence from Mr Peter Bell about the nature and conduct of the Bell Transport business. Based on that evidence, we are wholly satisfied that there are no additional grounds on which revocation could be considered. That accords with the conclusion of the then Head of the TRU, in paragraph 19 of his determination staying the effect of the revocation decision, that: