![[2023] UKUT 210 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
Discussion and decision
Discussion and decision
The following principles (extracted from the Digest of Traffic Commissioner Appeals) as to the proper approach to an appeal in the Upper Tribunal can be found in the decision of the Court of Appeal in the case of Bradley Fold Travel Ltd & Peter Wright –v- Secretary of State for Transport [2010] EWCA Civ. 695:
The Tribunal is not required to rehear all the evidence by conducting what would, in effect, be a new first instance hearing. Instead it has the duty to hear and determine matters of both fact and law on the basis of the material before the Traffic Commissioner but without having the benefit of seeing and hearing the witnesses.
The Appellant ‘assumes the burden’ of showing that the decision appealed from is wrong.
In order to succeed the Appellant must show not merely that there are grounds for preferring a different view but that there are objective grounds upon which the Tribunal ought to conclude that the different view is the right one. Put another way it is not enough that the Tribunal might prefer a different view; the Appellant must show that the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view.
The Tribunal sometimes uses the phrase “plainly wrong” as a shorthand description of this test. (NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI, paragraph 8).
Operator licensing is based on trust, as has long been recognised by courts and tribunals.
“Traffic Commissioners must be able to trust those to whom they grant operator’s licences to operate in compliance with the regulatory regime. The public and other operators must also be able to trust operators to comply with the regulatory regime” (Footnote: 7).
In NT/2013/82 Arnold Transport & Sons Ltd v DOENI, the Tribunal said:
“The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply withall relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation.
It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future”.
The trust in question is not blind trust or based on mere assurance that the applicant for an operator’s licence will comply in future. It is trust based on evidence that the applicant has knowledge of the regulatory regime and the skill, ability and willingness to implement the regulatory regime.
As previously mentioned (paragraph 13), the burden of proof rests on an applicant for an operator’s licence to demonstrate that he satisfies the regulatory requirements to hold a licence.
The appellants may run a good farming business and are trusted by farming and food organisations. Farming is their core business. However, that says nothing about their knowledge of the regulatory regime for operating a heavy goods vehicle or their skill, ability and willingness to implement that regime. No evidence was placed before the DTC on which he could judge those matters. The appellants, and Mr Craig in particular, were put on notice by the TC in 2020 that she had serious concerns about his knowledge and understanding of the rules relating to driver’s hours. She was also concerned about the lack of importance he appeared to attach to the call to public inquiry, demonstrated by his failure to provide documentation which had been requested. She highlighted that these were both matters which were likely to impact on the repute of any operator or transport manager (Footnote: 8). The appellants put no evidence before the DTC to demonstrate that anything had changed or improved since 2020. It is not good enough to say, as Mr Craig did at the PI (Footnote: 9), that he looks things up online on a need to know basis. If he is ignorant of the regime and is not familiar with what he needs to know or comply with, then he will not be aware that he has to inform himself on some specific issue or other. While a TM CPC is not an essential requirement for a restricted licence, as the DTC explained, a refreshed CPC would have been one way of demonstrating up to date knowledge of the regulatory regime. There are also other sources of training in drivers’ hours, but he had not availed himself of those either. The DTC was therefore entitled to find that Mr Craig had done nothing since 2020 to correct the deficiencies in his knowledge. We therefore reject the appellants’ first and fourth grounds of appeal.
It is quite clear from the transcript of the PI and the DTC’s decision that he was well aware that the appellants were seeking a restricted licence to move their own goods and not a licence to enable them to undertake hire and reward work. (See, for example, paragraph 4 and 14 of the DTC’s decision.) We therefore reject the second ground of appeal.
By letter dated 20 December 2022 (Footnote: 10), Mr Craig was informed that a PI was to be held regarding the application for a restricted licence. That letter appears to have been based on a template that had not been properly adapted to address the appellants’, or Mr Craig’s, specific circumstances and, for that reason, may have been misleading. The issue of such template, inadequately adapted, letters should be avoided. However, that letter was then followed up by a letter to the appellants dated 6 January 2023 (Footnote: 11) which was specific to the appellants. It outlined the evidence to be considered at the PI and what the appellants must do to evidence their proposed vehicle maintenance system and how they would comply with the laws regarding drivers’ hours and to give details of their proposed systems. There is also information available on the government website providing guidance on applying for an operator’s licence and how to prepare for a PI, with further links to Statutory Guidance (Footnote: 12). Despite the detailed advice in the letter of 6 January 2023, the appellants produced no such evidence. While the appellants may have had difficulties in obtaining a proposed maintenance contract, the DTC’s refusal to grant a licence did not hinge on that one omission. They did not put anything before the DTC to evidence their proposed vehicle maintenance system or their proposed systems for complying with the laws regarding drivers’ hours. Further, as discussed above, the DTC was not satisfied that Mr Craig’s skills, knowledge and understanding were up to date and that he was able and willing to comply at all times with the undertakings on any future licence. We therefore reject the third and seventh grounds of appeal.
The DTC made no finding on Mr Craig’s credibility or reliability. However, he was not prepared to grant the appellants an operator licence on the ipse dixit or mere assertions by Mr Craig that he had knowledge of the regulatory system and would comply. To have granted a licence on such a basis would have been irresponsible. This is particularly so given the concerns of the TC in 2020 and the fact that Mr Craig had done nothing to refresh and improve his knowledge of the regulatory regime since then. Given the notice and information the appellants had been given by the TC in 2020 and in the call up letter, Mr Craig’s belief that all he had to do was attend the PI and say he was an upstanding citizen who could be trusted was unreasonable and unrealistic. The fifth ground of appeal is therefore rejected.
At the PI, the DTC asked Mr Craig to tell him about his business. Mr Craig explained that they were farmers and they needed a restricted licence for movement of their own fresh produce (Footnote: 13). He also explained the difficulties his business had been experiencing in finding good and reliable hauliers. He stated that in his office he had a diary and he noted things down in the diary (Footnote: 14), he also had a computer and access to the internet in the office (Footnote: 15). The DTC did not take issue with these statements and there is no evidence in either the PI or the decision that he did not accept that the appellants had a farming business, farm office, diary and computer. The eighth ground of appeal is therefore rejected.
The sixth ground of appeal is not relevant to the question of whether or not the DTC was plainly wrong and is rejected.
Fresh Evidence
The appellants produced additional evidence for the appeal in the Upper Tribunal in support of their grounds of appeal. Although we have rejected the grounds of appeal, for completeness we explain why the additional evidence was inadmissible. The principles for allowing fresh evidence to be heard, and which apply to the Upper Tribunal, are laid down on the case of Ladd v. Marshall [1954] 1WLR 1489 where Denning LJ held (at 1491):
To justify the reception of fresh evidence...three conditions must be fulfilled: first it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.
The information downloaded from the government website on the responsibilities of HGV vehicle operator, and other documentary evidence submitted with the grounds of appeal, were all documents that could have been obtained with reasonable diligence for the PI and put before the DTC. The same applies to the photographic evidence showing the farm, farm office, forward planner and computer. The fresh evidence therefore does not satisfy the first requirement to be received at this stage. Accordingly, we refuse the request to admit this evidence.
We see no reason to disturb the DTC’s findings or his reasoning in reaching his decision that he could not be satisfied that the partnership is a fit and proper person to hold a restricted goods vehicle operator’s licence or that the partnership is able and willing to comply with the law in regard to vehicle operating or that the partnership is able and willing to fulfil the undertakings on the “O” licence application form.
There are no grounds for holding that the TC’s decision on these issues was plainly wrong.