[2024] UKUT 312 (AAC)

The PO began by asking whether loss of good repute would constitute a ‘disproportionate response.’ He rejected Mr McNamee’s submission to draw a distinction between certain offences and other MSI concluding that ‘ … to disregard these MSIs would understate the crucial role that drivers play in the safety inspection of their vehicles/trailers and in avoiding driving with insufficient rest and breaks.’ The PO addressed Mr McNamee’s citation of the decision in Thomas Muir as authority for that regulatory action should not be a punishment. He added that Thomas Muir was also significant with respect to the responsibility of operators.

Turning to the particular circumstances of the Appellant, he noted that:

The PO rejected Mr McNamee’s submissions that the case ‘… was one of a “clerical nature”’, that there was no danger to the public in the operation of vehicles by the operator and that the failures could not be described as severe citing the decision in H.Sivyer and Annex 4 of Practice Guidance Document No. 9 in support. He concluded:

The PO observed that the Appellant did not fit into the category of operator identified in Arnold who ‘… recognise the problem at once and take immediate and effective steps to put matters right.’ In the view of the PO and based on the Appellant’s awareness of a number of MSIs, a conviction and an unsatisfactory audit in 2022, his response was neither immediate nor effective.

Turning to positive aspects, the PO did give the appellant credit for engaging a transport consultant in early 2023 and the latter’s work in getting files in order for the DVA assessment in February 2023. Further, but with some qualification, vehicle records showed that the safety inspections were being carried out in accordance with the specified time intervals, driver defect forms were of “good scope” but not wholly satisfactory, and infringement reports were ‘being run and signed for’ but the scale of infringements for two drivers was unacceptable. There was one successful MOT test and the Appellant had committed to attending a Transport Manager Refresher Course in July 2023. He had ‘… reduced his vehicles and his authorisation could be significantly curtailed as a regulatory outcome.’

The PO accepted a submission from Mr McNamee that the decision in Thomas Muir was authority for the principle that the operator should not be suspended or revoked as a punishment for past conduct and that the position should be assessed as at the date of the inquiry. He noted, however, that based on the endorsement of Thomas Muir in KDL European Ltd, he was entitled to have regard to the purpose deterrence of the operator or other persons ‘… failing to carry out their responsibilities under the Legislation ... in order to assist in achieving the purposes of the legislation’. He was also entitled to have regard to the likely impact on other operators – Dundee Plant Company citing Highland Car Crushers Ltd.

Referring to Arnold Transport & Sons Ltd, the PO observed that he had to consider whether he could trust the Appellant to run a compliant licence in the future. Conceding the positives in the case, the PO found that they fell fairly and squarely into the category of “too little, too late”. Citing several examples, the PO concluded that there was a lack of trust and that this conclusion was further evidenced by the Appellant’s responses and demeanour throughout the PI and the manner in which he had answered questions.

At paragraph 64, the PO observed:

In these circumstances the PO could not find that that loss of good repute as an operator and transport manager and revocation of the licence would be disproportionate. Accordingly, his conduct was such that he ought to be put out of business.

The PO concluded by determining that:

The PO also determined that disqualification as an operator was necessary f or a 12-month period.