[2025] UKUT 062 (AAC)

The Traffic Commissioner’s reasons explain why both operator’s licences, in her opinion, had to be revoked:

“47.

In balancing, I was able to find some positives. Mr Bain was an operator of longstanding. He had hired two people – one of whom was CPC qualified – to help out following his wife’s death. He had also, on occasion, sought external help to try and improve things. There had been no further MOT failures or prohibitions issued since VE Mackie’s final visit in November 2022. I also accept that the loss of his wife likely impacted on his ability to run his business.

48.

Nevertheless, even balancing in the positives, I find that I am no longer able to trust Mr Bain. I simply did not believe his assurances that he is operating compliantly now. Despite a previous warning for failure to co-operate with the authorities, he has done so again in attempt to cover up his shortcomings. All the evidence points to the fact that Mr Bain simply does not believe that the rules apply to him. For those reasons, he can no longer be trusted to operate.”

Having referred to the Upper Tribunal’s statements in Arnold Transport & Sons v Department of Environment, Northen Ireland NT/2013/82 that “the Tribunal has stated on many occasions that operator’s licensing is based on trust” and, if an operator’s actions cast doubt on their regulatory trustworthiness, “their fitness to hold an operator’s licence will be called into question”, the Traffic Commissioner went on:

“50.

I asked myself the question posed in 2009/225 Priority Freight: How likely is it that this operator will, in future, operate in compliance with the operator licensing regime? Mr Bain’s failures to co-operate amount to a course of conduct. He has failed to heed an earlier warning and much of his evidence was inconsistent and incredible. I therefore considered it highly unlikely that Mr Bain would comply in the future.

51…The question posed in T/2002/217 Bryan Haulage (No.2) is therefore relevant: is the conduct of this operator such that it ought to be put out of the business? In reaching my conclusion, I also had regard to the Senior Traffic Commissioner’s Document No. 10: Principles of Decision Making, in particular, Annex 3.

52.

Mr Bain has clearly obtained a commercial advantage over other operators and compromised road safety by deliberately failing, for a significant period of time, to keep his vehicles in a fit and serviceable condition or to ensure that the laws on driver hours were complied with. He attempted to conceal his failures by falsifying documentation.

53.

This was a bad case, then, in which dishonesty was a feature. The starting point for regulatory action was severe. I also take the view that other operators who carry out their businesses in a compliant manner would be shocked if another operator were permitted to operate a vehicle against this background. In the circumstances of this case, it is appropriate and proportionate to answer the Bryan Haulage question in the affirmative.”

The Commissioner’s reasons then turned to Mr Bain’s good repute as transport manager:

“53…It is appropriate to find that Mr Bain has lost his repute as an operator. He is also a transport manager and given the findings of dereliction of duty and dishonesty in this case, it is not possible to separate his actions as such from that as operator. I refer to the case of Alistair Walter T/2017/55. Consequently, I also consider it proportionate to find that Mr Bain has lost his repute as a transport manager.”

Having found that Mr Bain had lost his good repute as a transport manager, the Traffic Commissioner was required to make an order disqualifying him from acting as a transport manager (paragraph 7B of Schedule 3 to PPVA 1981). The Commissioner also made an order under section 28 of the Transport Act 1985 disqualifying Mr Bain from holding or obtaining an operator’s licence. Both orders were for five years. The Commissioner’s reasons explained why this period of disqualification was considered justified:

“58…a period of disqualification is necessary to meet the objectives of the operator licensing regime. Acknowledging that this is a serious case involving dishonesty which strikes at the heart of the licensing regime, but giving credit for the positives that I was able to find, I have decided to disqualify Mr Bain from holding an operator licence for a period of five years.

59.

Mr Bain has lost his repute as a transport manager. I must therefore disqualify him from acting as such. I see no reason to depart from the period of disqualification ordered in relation to his capacity as an operator.”