[2024] UKUT 22 (AAC)

Ground 1: The DTC found that the 4^th appellant had been involved in the set-up of CHL and, as such, implicated and thus “he failed in his duty to decline the involvement and inform the TC” (paragraph 370 of the decision). It is submitted that the DTC was plainly wrong and misdirected himself on the evidence and/or the law in concluding (1) that the fourth appellant was involved in the set up and (2) he failed in his duty to the Traffic Commissioner. There was insufficient evidence for this finding. It was incorrect to state that Hana Simpson had no motive (paragraph 348) given the evidence of Mr Strathearn.

Ground 2: The DTC concluded that the 4^th appellant had been deceitful throughout from 2019. The 4^th appellant’s evidence was that James Strathearn had not breached the conditions of his disqualification. The DTC had failed to state when the 4^th appellant failed in his duty; the 4^th appellant not being the nominated transport manager until October 2021. Furthermore, it was submitted that the test for the transport manager and the assessment of the duty to the traffic commissioner has to be subjective. The question of whether the evidence given by Gordon Dunne and Johanna Dunne was false, was only determined by an experienced DTC after three days of evidence (paragraph 369). Whilst it is accepted, that transport managers are the eyes and ears of traffic commissioners, transport managers are not expected to act as de facto traffic commissioners, and make findings of fact, and as such the DTC erred in law.

Ground 3: It is submitted that the DTC was in error of law, and plainly wrong, in concluding that the fourth appellant’s position at the PI, that he was sufficiently remote from management and administration of the company should a finding of fronting be made out, was not arguable, given that the fourth appellant was involved in the set up (paragraph 367). There is no suggestion that the fourth appellant was a de facto or shadow director of the operator. It is submitted that the expectations on a transport manager are not clear in such a situation (paragraph 371). Having arrived at the conclusion there was fronting, the DTC had to assess how remote, or otherwise, the appellant was from the purported fronting. This he failed to do.

Ground 4: Further, it is submitted that the DTC erred in disqualifying the 4^th appellant for 12 months which is disproportionate and excessive. The DTC failed to draw a distinction between disposal of the operator’s case and the 4^th appellant’s case.