[2024] UKUT 22 (AAC)

The 4^th appellant appeals against his loss of good repute and disqualification for a period of 12 months. Mr Kelly accepted that if a TM is found to have acted deceitfully then that is very serious. He submitted that because it was so serious the evidence relied upon to arrive at that conclusion should be incontrovertible and any contrary explanation should be capable of being discounted or ignored. In considering how likely it was that Aaron Harrison was involved in the set-up of the operator as a front for James Strathearn, the Upper Tribunal had to consider not only the good repute of the 4^th appellant but also how inherently probable or improbable it was that he would be so involved (Footnote: ¹⁵). Nevertheless, it was accepted that the standard of proof remained the balance of probabilities and it was acknowledged that the hurdle before the 4^th appellant was a high one.

Ground 1: Given the email evidenceproduced by James Strathearnto support the allegations or fronting, Mr Kelly submitted that it is striking the lack of emails either referring to Aaron Harrison or including Mr Harrison as a recipient. Had he been involved from the outset and acting as de facto Transport Manager, Mr Kelly submitted, there would have been such correspondence. He referred to document X3 [1462] as an example. Of the email evidence produced (listed at page 67) there was nothing showing that Aaron Harrison was involved in the setting up of Central Haulage.

Mr Kelly submitted that the finding that Aaron Harrison’s evidence about the setting up of CHL and the involvement of Hana Simpson was implausible [para 334 p2289] was not supported by the evidence. There was no documentary evidence about the setting up of CHL. Aaron Harrison’s evidence was that he did not know at the start thatHana Simpson was a director. The motive that Mr Harrison identified was as a consequence of the dispute that was ongoing [p1402 at 41:30] between James Strathearn and Johanna and Gordon Dunne. On the specific question of Hana Simpson's role as director of Central Haulage Ltd Mr Harrison's evidence was he did not know [p1404 at 51]. It was submitted that, in light of the evidence, to find that Aaron Harrison’s evidence was implausible was plainly wrong.

Ground 2: The Deputy Traffic Commissioner arrived at a conclusion that Mr Harrison failed in his duty to the Traffic Commissioner. The DTC has not stated when this duty arose. Aaron Harrison was not appointed TM until October 2021 which was 2 years after the start of the CHL operation. The DTC refers to the decision in Liliana Manole [2022] UKUT 002277(AAC) and the role of the Transport Manager to be the eyes and ears of the Traffic Commissioner. In his decision, the DTC found that this had not been a typical fronting operation. In those circumstances, what was Aaron Harrison to do and when?

The evidence of Aaron Harrison was that Central Haulage was the business of Johanna and Gordon Dunne. It is possible for the DTC to find there was a fronting arrangementand that Aaron Harrison was remote from that. The DTC rejected Aaron Harrison's argument finding as he was at the start up meetings {which was denied} and at the DVSA interview in March 2020 Mr Harrison's evidence was he was impartial at that meeting [p1396]. It is speculation by the DTC as to what Mr Harrison took from that interview Given the DTC never asked Mr Harrison this question it is was not open for him to speculate why.

Ground 3: Following from Ground 1, that having found Mr Harrison was involved in the set-up of CHL he is implicated in the arrangements that followed. The DTC did not consider even ifMr Harrison was at the start up meetings, to what extent he was implicated in what followed.

Clearly from the evidence Mr Harrison was not acting as a director. He performed Transport Manager duties from October 2020 (accepting Mr Strathearn and Ms Simpson say he was acting as Transport Manager earlier). The evidence is he was performing the duties of Transport Manager pertinent to drivers hours, and administration and vehicle maintenance, well. (It is accepted Mr Strathearn stated that this was in part due to him [p1311 at 07:00]). However, the issue of Mr Strathearn being disqualified cannot be overlooked.

Even if there was something amiss with the company, Aaron Harrison was sufficiently remote from this to justify retaining his repute. The DTC should have made an assessment of his culpability. Aaron Harrison’s position is distinguishable from that of the TM in the Manole case. The TM in that case had been very involved in the fronting operation.

Mr Kelly submitted that, If Transport Managers are to be the eyes and ears of Traffic Commissioners the test for each Transport Manager must be subjective; for the professionally competent person to assess each given situation. Mr Harrison believed that he acted appropriately. The DTC after having had voluminous evidence (the Compliance Team Leader never had a case with such a volume of material in 16 years [p009]) arrived at his determination; much of which had not been seen by Mr Harrison before the Inquiry. The DTC’s conclusion on the evidence is therefore wrong.

Ground 4: The length of disqualification is excessive. The DTC acknowledged that Aaron Harrison had been put into an invidious position (paragraph 370). Regard is given to paragraph 323 [page 2287] of the DTC’s decision. Whilst each case is considered on its merits, that the Transport Manager, who has no familial relationship with Mr & Mrs Dunne, and has no shareholding in Central Haulage Ltd, be disqualified for the same length of time as the operator is perverse. Having regard to Aaron Harrison’s particular circumstances his period of disqualification should be shorter.