[2024] UKUT 47 (AAC)

In our view there is no substance in this ground so far as it relates to procedural impropriety. The call-up letters made clear that the inquiry would consider the evidence of Mr. Day’s interview with Ms. Groom, the record of which includes Mr. Day’s statements that Mr. King had given him his driver’s card and had pressured him to use it. We do not agree that the appellants or their representative were in any way ambushed by the evidence Mr. Day gave at the inquiry. Indeed, paragraph 15 of Mr. King’s statement dated 27^th January 2023 expressly addresses the evidence of pressure in Mr. Day’s statement and paragraph 12 asserts that his card was in the vehicle. The fact that Mr. Day changed a part of his evidence at the inquiry is not a procedural impropriety. The case of Dukes Transport (Craigavon) Limited, Appeal 68/2001, to which we were referred, is a helpful illustration of what the rules of natural justice may require in certain circumstances, but there was clearly no breach of natural justice in the manner suggested in the present case.

Moreover, at the outset of the inquiry the TC explained, particularly for the benefit of Mr. Day as an unrepresented party, that the evidence of his use of Mr. King’s card as contained in the DVSA interview was a key issue and that his proceedings as a driver were separate proceedings but did impact on Mr. King’s repute as an operator and transport manager and fitness as a driver. He further explained that he would hear evidence from Mr. Day at an early stage, would then hear evidence from Mr. King and any other parties he wished to call and would then indicate the process as far as his decisions were concerned. This ought to have made it clear that evidence from Mr. Day in the driver conduct hearing was to be taken into account in the operator licensing hearing. When Mr. King began to give evidence Ms. Bell clarified the position further and it does not appear from the transcript that Ms. Bell found any difficulty in that approach. In our view the TC acted perfectly properly in taking that course.

It follows that we do not accept the submission that the important finding that Mr. King had pressured Mr. Day into using two cards was in any way affected by procedural impropriety. We therefore turn to the question whether the TC was plainly wrong in all the circumstances to make that finding.

We agree with Mr. Finnegan that strictly speaking the issue whether Mr. King (through Ms. Wallace) gave Mr. Day his card is separate from the issue whether Mr. King put pressure on Mr. Day to use the card and the evidence relating to pressure is more limited than the evidence relating to the first issue. That is no doubt in part because, having asserted that Mr. Day had taken the card from the lorry and he had no knowledge that Mr. Day was using it, Mr. King could not give evidence to the effect that it had not been necessary to put Mr. Day under any pressure because he was willing to use the card to help Mr. King in dealing with the aftermath of the accident. It is, however, a fair comment that having accepted Mr. Day’s evidence as to how he came to be in possession of Mr. King’s card, the TC accepted Mr. Day’s evidence as to pressure without any additional reasoning.

Nevertheless, it is clear, and indeed was part of Mr. Finnegan’s submissions, that the TC effectively approached the case on the basis that if Mr. Day was a more credible witness than Mr. King and Ms. Wallace, his assessment of credibility extended not only to the question how Mr. Day obtained the card but also the question whether Mr. King put Mr. Day under pressure. This ground of appeal stands or falls with the question whether the TC was plainly wrong in his overall assessment of Mr. Day’s credibility compared with the credibility of Mr. King and Ms. Wallace. Mr. Finnegan’s attack on the TC’s assessment was effectively two-pronged, consisting of submissions as to why Mr. Day should not have been treated as a credible witness on the one hand and submissions as to why Mr. King and Ms. Wallace should have been treated as more credible witnesses than the TC found them to be on the other.

The attack on Mr. Day’s credibility focuses primarily on the change in his evidence from his statement that Mr. King gave him the card to his statement at the inquiry that Ms. Wallace gave it to him on Mr. King’s orders. We recognise that there is a change in evidence there which was not expressly mentioned in the TC’s decision. In practical terms, however, the vital point for the purposes of the inquiry was not by what precise means the card came into Mr. Day’s possession but whether he had it and used it with Mr. King’s authority or without that authority. Overall Mr. Day’s evidence was that Mr. King knew he had the card and was urging him to use it. In paragraph 36 of the decision the TC stated that he found Mr. Day’s evidence at the inquiry that Mr. King gave him the card “via Ms. Wallace” clear and credible and we read the paragraph as a finding of fact that that was what happened.

It is submitted that the TC erred in saying that Mr. Day had no reason to lie, because evidence of pressure from the employer could be taken into account as mitigation in the driver conduct proceedings. We agree that that is so in principle. The TC, however, having referred in paragraph 20 of the decision to Mr. Day’s evidence at interview about Mr. King having instructed him over the phone to put his (Mr. King’s) card in and make sure he was first on the job in the morning, referred in paragraph 21 to Mr. Day’s admission that there was no excuse, he had done it and everyone has a choice. There is nothing in Mr. Day’s evidence at the inquiry to suggest that he was trying to rely on pressure from Mr. King as mitigation, although the TC had ascertained from him that he was aware of the Statutory Document on driver conduct. As we read the transcript, he simply confirmed his evidence at interview that Mr. King had shouted at him, saying that they could not afford to pay for everything, and that he did not himself benefit from the double-carding. He expressed the view that Mr. King was afraid he would lose the business, but accepted that he had not asked him if that was the case.

There was in fact a further direct conflict of evidence between Mr. Day and Mr. King as to whether Mr. Day had left voluntarily or Mr. King had dismissed him. Mr. Day’s evidence, as summarised above, was that he had given a week’s notice, worked his week and left on the Friday, starting his new job on the following Monday. By contrast Mr. King said that Mr. Day had told him for the first time on the Tuesday or Wednesday about the use of his card and on the Friday he had dismissed him over the telephone. In accepting Mr. Day’s evidence on the point, the TC commented on his demeanour and it is noteworthy that the transcript records Ms. Bell as saying to Mr. Day, when she put Mr. King’s case to him, “Clearly that amuses you.”

Mr. King’s case on this point faced the obvious difficulty that it depended on his having known nothing about Mr. Day’s use of his card earlier, so that his concern about what the DVSA might find on downloading the tachograph data provided in May 2021 could not have been concern about the disclosure of double-carding. That was very difficult to reconcile with the facts that shortly after the DVSA investigation began Mr. King resigned as a director and Ms. Wallace was appointed and that, as was admitted, the changes in directorship were at least in part intended to conceal Mr. King’s connection with the Company in case that derailed the Company’s application.

Looking at this interrelated evidence as a whole, we think the TC’s finding of fact that Mr. King was well aware of the use of his card when the change of directorship took place was entirely reasonable. There is no suggestion that he could have become aware of it by that date through any other means than having had knowledge from the outset. This part of the case strongly supports the TC’s overall conclusion on credibility.

It is submitted that the TC was in error in treating Mr. King as having failed to co-operate with the DVSA by comparison with Mr. Day. Given that Mr. King failed on three occasions to attend for interview, without explanation and even on a date when he had said he would be available, we do not think that there was anything unfair in the TC’s assessment. Mr. King tried to excuse this failure in part on the basis that he thought it was unnecessary to provide the requested information because the sole trader licence was being surrendered. He could very readily have checked that point with Ms. Groom, but made no attempt to do so. His other explanation is that he panicked. Panicking because the traffic examiner or the OTC might find out certain facts does not mean that the operator in question has not failed to co-operate with the DVSA if he fails to supply information or attend interviews or that the failure to co-operate is to be treated lightly.

We recognise that the TC’s conclusion on credibility means that he differed from Ms. Groom’s apparent conclusion that Mr. King did not know of the use of his card by Mr. Day, but we agree with the TC’s comment when granting a stay of his decision that it was for the TC to determine which of Mr. King and Mr. Day was to be believed, on the basis of the evidence heard at the inquiry. He had the advantage, which Ms. Groom did not, of hearing them give evidence in succession and of hearing the evidence tested. The fact that a traffic commissioner has that advantage is one of the reasons for the “plainly wrong” approach adopted in Bradley Fold. We do not think that the TC’s failure specifically to address the points Mr. Finnegan makes on Ms. Groom’s evidence comes close to bearing enough weight to impugn his decision.

As to Mr. King’s alleged lack of motivation for requiring Mr. Day to use two cards, the TC referred to the evidence in paragraph 25 of the decision and also in paragraph 43, where he stated:

“Whatever Mr. King’s financial position, I believe that his overriding reaction to his incapacity and his contractual commitments was to say, “Just get the job done,” as described by Mr. Day.”

In our view, the TC was entitled, on the basis of the evidence he had heard and as part of his overall assessment of credibility, to come to that conclusion. It appears to us inherently probable that a man who had suffered a very serious accident would think first about how to get the job done (especially at the outset, when his own lorry was already loaded) and would not stop to consider what savings he had and how they might be used. We note that the double-carding stopped at about the time when Mr. Norton was employed as a second driver. Given that Mr. King was still unable to give full attention to the business and in particular was unable to drive his lorry, we see no reason why Mr. Day should have stopped using Mr. King’s card if he was doing so for his personal convenience.

Finally, if Mr. King had indeed instructed Mr. Day to use his card in order to get the job done during Mr. King’s incapacity, we think it necessarily follows that he, and Ms. Wallace with him, put their commercial interests ahead of public safety, since the purpose was to enable Mr. Day to break the rules on drivers’ hours.

For all the above reasons, we reject the first ground of appeal. Far from being plainly wrong or Wednesbury unreasonable, the finding of fact was entirely reasonable and was soundly based on the totality of the evidence which could properly be taken into account.