Case No. UKUT-00320-(AAC)

3.We shall refer, albeit briefly, to certain of the protagonists. Mr Ian Newman (“Mr Newman”) was, at the time the appellant company applied for the above licence and at the time of the TC’s decision under appeal, the appellant company’s sole director. He was appointed as such on 13 April 2021, shortly prior to the licence application being made. As we understand it, he remains the appellant company’s sole director. As to Andrew Pervis Scott (“Mr Scott”) he describes himself, in his witness statement, as “a British entrepreneur” and he goes on to explain, as we understand him, that he specialises in “investing in turnaround projects”. He adds “as an offshore investor I own 25% of the company REL Haulage Limited (“hereafter “Haulage”), held through my investment vehicle REL Investment Management Limited, a company established and registered in Jersey”. He provides information about other of his business interests which we need not make reference to at this stage. He is not and as we understand has never been a director of the appellant company. He further indicates, again in his witness statement, that he has never been a director of a company called REL UK Holdings Limited (see below). Mr Scott did not attend the PI which considered the appellant company’s licence application, and it appears he could not have been compelled to do so although we can see no reason as to why he could not have attended and given evidence if wished. But his position is that there was no signal sent to him to suggest that he should do so and no reason to think that he should do so. Adam Lewis (“Mr Lewis”) also describes himself as a British entrepreneur who specialises in investing in turnaround projects. He was, at the material times, the sole director of a company called REL Storage and Logistics Limited. He was not, at the material times (and it seems to us he was not at any time) a director of the appellant company. At the PI which considered the appellant company’s licence application, the situation of REL Storage and Logistics Limited was also considered. That company had been called to the PI as a result of a Driver Vehicle Standards Agency (DVSA) maintenance investigation carried out in June 2021, the outcome of which was marked “unsatisfactory” in consequence of what the TC described as “poorly completed safety inspection sheets and, ineffective driver defect reporting system, and inadequate (mobile) maintenance contractor and a prohibition issued to a trailer for a defective tyre”. Mr Lewis attended that PI with respect to his involvement with REL Storage and Logistics Limited. It is his position that he was not there and was not in a position to answer for any concerns concerning the appellant company. It is fair, we think, to describe Mr Scott and Mr Lewis as being business associates. In the skeleton argument referred to above, Mr Clarke described Mr Scott and Mr Lewis as “persons with relevant interests in both the outcome of the public inquiry and of this appeal”.4.As to the corporate protagonists, it is intended the appellant company (if it gets a licence) will operate as a haulage company. At the time the licence was sought it was envisaged that it would take over the haulage activities of REL Storage and Logistics Limited. REL Storage and Logistics Limited had been operating in that field but was described at the hearing before us as now being “a warehouse operation”. REL Investment Management Limited is a company Mr Scott has described as “my investment vehicle”. That company, as Mr Clarke confirmed to us at the hearing, owns 25% of the appellant company. REL UK Holdings Limited was established by Mr Lewis and the “REL Group Limited (of Malta)” on 25 October 2018 as a UK based investment vehicle. According to the history of events given by Mr Scott in his witness statement, Mr Lewis held 10% of the allotted shares of REL UK Holdings Limited on incorporation. On 7 November 2018 REL Group Limited transferred its holding in REL UK Holdings Limited to Mr Scott who, on 10 July 2020, transferred his holding in REL UK Holdings Limited to REL Holdings Limited which he refers to as “my Jersey based investment company”. 5.To complete the corporate history, there was a company called BB Transport Limited which held a goods vehicle operator’s licence. Its director was Mr Lewis. Under the terms of its licence, it was authorised to operate 28 vehicles and 10 trailers. According to records held by the Office of the Traffic Commissioner (“OTC”) 17 of its vehicles were removed from that licence and included in the licence of REL Storage and Logistics Limited. Again according to the OTC, liquidators were appointed, with respect to BB Transport Limited, on 2 November 2021. 6.On 23 November 2021 the OTC sent a call up letter to the appellant company informing it that its application, which was for authority to utilise 50 vehicles and 50 trailers, was to be considered at a PI. On 29 November 2021 a call up letter was sent to the appellant company informing it that the PI would take place on 10 December 2021. 7.Issues have arisen in this appeal as to the adequacy of information given in the call up letter of 23 November 2021, in the context of fairness. We shall, therefore, say something about the content of that letter. It explained that the PI would afford an opportunity for the TC to be shown how “the company meets the requirements”, that being a reference, we are sure, to statutory requirements for the granting of a licence as contained within the Goods Vehicles (Licencing of Operators) Act 1995 (“the Act”). It was suggested in that letter that the company ought to “identify competent legal or professional help and representation quickly” unless those acting for the company were “confident” that such would not be needed. It was said, amongst other things, that the TC wished to be satisfied that the appellant company is “of good repute”. Reference was made to the financial situation of the appellant company and this was said:“The monies for the applicant company have been provided by REL Investment Management Limited a company run by Adam Lewis which is described as a Jersey based private equity company on its website”.8.The letter then referred to Mr Scott and noted that it had been indicated on behalf of the applicant company that he was the provider of the company finance. As indicated, REL Storage and Logistics Limited was also called to the same PI (a conjoined PI). Other documentation concerning the PI was subsequently sent to the appellant company prior to the PI taking place but we shall say more about that below.9.The PI went ahead as scheduled. Mr Newman was in attendance on behalf of the appellant company. Mr Lewis, according to indications he has subsequently given, was in attendance solely in his capacity as director of REL Storage and Logistics Limited. Mr Scott, as we have made clear, was not in attendance. It is right to say that the call up letter did not invite Mr Scott to attend nor suggest that he should do so.10.It appears that the TC had in his mind, at the outset of the PI and presumably before, certain concerns which might sometimes arise when one company effectively takes over part of the business of another company which then ceases to trade. Of course, in this context, the appellant company was proposing to take over the existing business of REL Storage and Logistics Limited, which had, itself, incorporated some elements of BB Transport Limited. The TC made these comments:“……. My worry when I see applications which are basically continuations of previous or existing licences, is I’m sure you can understand this, that it is all too prevalent in the road haulage world for company A to go bankrupt leaving creditors high and dry, HMRC normally inform us to one of them. The vehicles somehow magically appear on company B’s licence from the same premises with the same directors and everything carries on. Often the merest of name changes, you know (inserted here or there) and everything goes on fine except for the poor people left high and dry owed hundreds of thousands of pounds. And that to me is qualitatively different from a company which goes bankrupt in 2021 and then in 2025 a licence is applied for well then that’s obviously a different kettle of fish….”.11.Mr Clarke has taken us, in his skeleton argument and oral submissions, to other comments of the TC made during the course of the PI which he says, whilst he was careful to stress before us that he was not seeking to argue bias, suggest the TC had a negative general view of what Mr Clarke calls “the “REL business model”. Amongst the comments of the TC which Mr Clarke has set out in his skeleton argument, are the following:“Right. I’m struggling. I’m struggling to see what kind of benefit to society there is from you purchasing bits that are viable and leaving everyone else with the debts. And then escaping to form a new company with the viable bit”.12.That observation was directed towards Mr Lewis. It is perhaps worth pointing out, though, that the transcript records Mr Lewis as having given a relatively lengthy response which the TC listened to without interruption. Another comment Mr Clarke highlights, was directed towards other business interests and business involvement which Mr Scott and Mr Lewis have had. The TC said this:“….. I realise it is a long time since July to be considering this but there are reasons why it’s taking this long and that is the seemingly chequered history that Mr Scott and you Mr Lewis have had with companies in the past. Every company that you both have been involved with seems to have gone bankrupt owing a lot of money to people”And then:“well, do you have BB Transport and Storage and Logistics just recently, prior to that for Mr Scott there’s been Oxford Hotel Management Limited, Dova Interiors Limited and Croft Hotel Bournemouth Limited, Woodcroft Tower Hotel Limited. So yeah. Oh, and Bison Transport and [Roadways] express have both gone out there as well”.And then:“….. What is Mr Scott’s involvement he’s just a kind of guy sitting in a chair with a white cat and jersey as he dispenses lots of money around”.And then, this being a remark which Mr Clarke suggests shows an inappropriate preference on the part of the TC to have before him unrepresented individuals:“Yes, it’s always better to talk to the actual operator people rather than have it all sent through a highly paid barrister. Well, so yeah on the summary I mean as far I’m as I’m aware it’s pretty well alright except maybe when one or two licences were refused that was prior to the involvement with your stroke with Mr Scott”.And then:“yeah, why does it have to be an offshore investor though……”And then:“well, I suppose that at least its Jersey and not Cayman Islands.”13.The PI appears to have lasted for something in the region of 1 hour and 12 minutes. The transcript runs to 24 typed pages. 14.It is apparent that, prior to the PI, the OTC had conducted some research into the business interests of Mr Scott and Mr Lewis. Such was referred to by the TC in his written reasons of 7 January 2022 (see below). The OTC also made some post PI inquiries of Mr Newman, specifically as to whether he had paid for his 75% shareholding in the appellant company. He responded in writing by indicating that he had not done so. He explained “the investment provided by Andy Scott is both an investment in the business and an investment in myself”.