[2024] UKUT 47 (AAC)

The TC’s reasoning in this respect, as we understand it, was as follows:

We think that Mr. Finnegan is strictly correct in contending that, in substance, paragraph 34 of Mr. King’s statement is a recognition that he tried to conceal from the OTC his involvement with the Company. His difficulty, however, is that in paragraph 32 of his statement Mr. King asserted that the sole reason for his resignation as a director was to help with the mortgage application. He rightly says in the supplementary submissions that the two paragraphs do not sit comfortably together, because the attempted concealment would have been impossible if Mr. King had remained a director. It appears logically to follow that if paragraph 32 had been true, the decision that he should resign would have been a happy coincidence which made the concealment admitted in paragraph 34 possible.

Mr. King’s evidence at the inquiry made it clear that there was no such happy coincidence. The first reason he gave in response to Ms. Bell for having resigned as a director was the existence of the DVSA investigation. She referred to that admission as a “slight change” in paragraph 32. Not surprisingly, the TC returned to the point and it is clear that the evidence that the mortgage application was “the sole reason” for resignation was straightforwardly untrue. In those circumstances, it is arguably more correct to say that (i) Mr. King attempted to mislead the inquiry as to his reason for resigning as a director, having previously attempted to mislead the OTC as to his involvement with the Company and (ii) he did so in an attempt to conceal the fact that his desire to mislead the OTC arose from his knowledge that Mr. Day had been using his card.

In those circumstances, while paragraph 33 of the TC’s decision may have run together the attempted deception of the inquiry and the attempted deception of the OTC, we do not think that any such flaw in the reasoning undermines the TC’s conclusion as to credibility. It cannot, of course, undermine the separate finding that Mr. King made a false or incomplete application for an operator’s licence, because that is what is now undisputedly the case.

A similar point arises in relation to the statement of Ms. Wallace. In her statement she adopted Mr. King’s evidence. Ms. Bell gave her the opportunity to correct her statement in so far as it dealt with Mr. King’s reason for ceasing to be a director, but she did not. In answer to the TC she said that she was aware of the DVSA investigation and effectively confirmed that the mortgage application was not the sole reason for Mr. King’s resignation and that she left him off the application form to avoid jeopardising it. She was also effectively unable to answer, except by referring again to having panicked, when the TC asked her why her statement was incorrect. Her credibility stands or falls with that of Mr. King on this point. We accept that she admitted by her statement that they had attempted to mislead the OTC and did not in so many words admit in her evidence that she had attempted by her statement to mislead the inquiry, but again we do not think that this affects the TC’s conclusion overall as to her credibility. In response to Mr. Finnegan’s further point that if the TC regarded Ms. Wallace as complicit in the deception he ought to have said so, we express the view that, on a fair reading of the decision, he did.

Again, for all the above reasons we do not accept that the TC’s finding of fact was plainly wrong or Wednesbury unreasonable. Mr. King and Ms. Wallace had the opportunity when they made their statements to give a full and accurate account of why Mr. King ceased to be a director and its relevance to the attempt to conceal his involvement from the OTC and clearly failed to do so. In failing to give accurate evidence about their attempt to mislead the OTC, they also attempted to mislead the TC. There is nothing in this point which adversely affects the TC’s overall assessment of credibility and we reject this ground of appeal also.