REASONS FOR DECISION
Introduction1.Mulberry Automotives Ltd (“the appellant”) has appealed to the Upper Tribunal from a decision of a Deputy Traffic Commissioner (“DTC”) which he made on 21 September 2021 following a public inquiry (“PI”) of 14 September 2021, to refuse its application for a goods vehicle operator’s licence. The appellant has two directors being Subash Choudry and Elaine Choudry. The two are married to each other. The basis for the DTC’s decision was his conclusion that the appellant (this conclusion being largely based upon the history and the past conduct of Subash Choudry) was not of good repute.2. We held an oral hearing of the appeal which took place at Field House in London on 19 July 2022. Although the appellant was not legally represented, Subash Choudry attended before us and made points on his and the appellant company’s behalf. 3.It had been intended that the appeal would be heard by a panel comprising a Judge and two Members of the Upper Tribunal. However, 19 July 2022 was a particularly hot day and that had had a significant adverse impact upon the operation of the United Kingdom’s rail network. Thus, the intended second Member had been unable to travel. The position was explained to Mr Choudry and it was indicated that we would consider postponing if he wished us to do so. However, he clearly indicated that he was content for us to proceed as a two-person panel. We decided to do so because Subash Choudry was content for us to do so; because the issues raised by the appeal were straightforward; and because it seemed to us that no unfairness would result. That, we believe, has proved to be the case.Good repute3. Section 2(1) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) provides, subject to very limited exceptions which have no application here, that no person shall use a goods vehicle on a road for the carriage of goods, for hire or reward or for or in connection with any trade or business carried on by him, except under the terms of the licence issued under the Act. On application for a standard licence section 13(1) of the Act provides that a TC (and it follows a DTC) must consider whether the requirements of sections 13A and 13C are satisfied. Section 13A contains a requirement that an applicant for a standard licence be of good repute in accordance with paragraphs 1-5 of Schedule 3 to the Act.4. In NT/2013/82 Arnold Transport and Sons Ltd v DOENI, the Upper Tribunal stressed the importance, in the context of a consideration as to good repute, of applicant’s or a licence holder’s fitness to hold a licence. It was said that an operator who cannot be trusted to comply with the operator’s licencing regime is unlikely to be fit to hold an operator’s licence. The background and the previous adjudication history5.This section of our decision will be a relatively lengthy one. There is an extensive history, and it is important that much of it is set out.6.Subash Choudry was previously a director of and a transport manager for a company called South-East Express. It was granted an operator’s licence on 12 July 2006. He was also the sole director of a company called Mulberry Logistics Ltd. which was granted a licence on 7 July 2008. The licence of the latter company was revoked on 4 September 2014 and the licence of the former company was revoked on 6 August 2017. Both companies had gone into liquidation and Subash Choudry had failed to notify the Office of the Traffic Commissioner (“OTC”) that they had. That was something he had been required to do. 7.On 28 April 2014 an application for a restricted goods vehicle operator’s licence was made by Mulberry Automotives Ltd. At the time of the application its sole director was Elaine Choudry. Subsequent enquiries revealed links between that company and Mulberry Logistics Ltd. The DTC who was dealing with that case (the same DTC who made the decision now under appeal before us) decided to hold a PI so that the application could be properly considered. Both Subash Choudry and Elaine Choudry attended the PI. On 8 December 2014 the DTC produced his written decision explaining why he was refusing the application. He had been concerned that Elaine Choudry did not have the knowledge to run the business and that it would, in fact, be run by Subash Choudry who was, in effect, bypassing the need for him to satisfy the good repute and fitness requirements. As to those matters the DTC said this:“7.Whilst I have considered the submissions carefully, I do not agree with them. As a matter of law Mrs Choudry as the sole director would be responsible for the operator’s licence on behalf of the company and has to demonstrate a level of knowledge and authority in this regard. I am not satisfied that she has done so and I do not accept the suggestions that I should grant the licence with a promise of subsequent training to redress the current deficit.8.Even if Mrs Choudry had been able to demonstrate knowledge and understanding the reality is that her position would still be a front for Mr Choudry who would be running the business and managing the operator’s licence. Whilst it may be that Mr Choudry could prove fitness this has not been tested and full enquiries as to the winding up of Mulberry Logistics and the disposal of assets have not taken place. If a change in directors takes place and a new application is submitted these are areas which will merit further exploration as will any sub-contracting arrangement which has prevailed whilst no relevant licences have been in force”.8.Quite shortly after the issuing of the DTC’s above decision, in fact on 14 February 2015, Mulberry Automotives Ltd made a further licence application. This was for a standard national goods vehicle operator’s licence. At the date of that application Elaine Choudry was its sole director but Subash Choudry was its nominated transport manger. Subash Choudry subsequently became a director on 1 April 2015. This application was dealt with by a TC who, perhaps unsurprisingly, decided that matters should once again be considered at a PI. A primary concern for the TC related to an indication that the appellant had been operating a vehicle unlawfully through utilisation of a licence belonging to another operator. Having heard evidence on that matter the TC concluded as follows: “