[2025] UKUT 062 (AAC)

The Appellants accept that the Traffic Commissioner was entitled to find that Mr Bain’s dealings with VE Mackie were ‘obstructive’. However, it was not open to the Commissioner to find that this was part of a course of conduct.

The Traffic Commissioner’s ‘course of conduct’ finding relied on Mr Bain’s appearance at a public inquiry in 2019. However, argue the Appellants, there was no evidence before the present public inquiry as to the reasons for the 2019 public inquiry call-up nor whether the Commissioner who dealt with that inquiry made a finding of obstructiveness. Moreover, the circumstances of the 2019 written warning were very different to those of the present public inquiry.

In relation to Mr Bain’s dealings with TE Jarvis, the Appellants submit that it was not open to the Traffic Commissioner to find that Mr Bain had been obstructive. The evidence showed that the interaction between the two was unproductive because of Mr Bain’s lack of familiarity with the software package used, Mr Bain gave TE Jarvis access to his software and did supply, albeit late in the day, the information requested (see TE Jarvis’ oral evidence at the inquiry hearing).

Absent what the Appellants submit was a flawed finding of obstructiveness, the Traffic Commissioner would have been far more likely to answer the PriorityFreight (2009/225) question in the Appellants’ favour (“how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”). That likelihood would have been further enhanced had the Commissioner given sufficient weight to the positive factors acknowledged in paragraph 47 of her reasons, namely the death of Mr Bain’s wife, Mr Bain’s hiring of two assistants including one who was CPC qualified, Mr Bain having sought external help from transport consultants and the absence of further MOT failures or vehicle prohibitions since November 2022.