[2024] UKUT 47 (AAC)

We start by observing that Mr. Finnegan’s submissions begin by admitting that the case fell into the severe category even on the basis of failure to detect Mr. Day’s use of Mr. King’s card. That, however, was not the basis adopted by the TC, who found that Mr. King was well aware of Mr. Day’s use of the card and put pressure on him to make use of the card. In addition, the TC found that Mr. King and Ms. Wallace had made a misleading application and had attempted to mislead the TC. Plainly the case fell into the severe category all the more on the basis of the facts found by the TC. As we have explained, we see no ground for interfering with those findings of fact.

Moreover, the TC’s findings of fact necessarily formed a substantial part of his reasons for deciding that Mr. King had lost his good repute as operator, transport manager and director, that Mr. King had therefore also lost professional competence as operator, that Ms. Wallace had lost her good repute as director and that the Company had lost its good repute. Except as respects Mr. King’s standing as a transport manager, these are grounds for mandatory revocation under s.27 of the Goods Vehicles (Licensing of Operators) Act and the question of proportionality in relation to revocation therefore does not arise. The Priority Freight and Bryan Haulage questions which we referred to in paragraph 51 above and which were asked by the TC in this case have been formulated to ensure that revocation is indeed a proportionate response to the conduct which has occurred. For the avoidance of doubt, we state expressly that in our view the TC was not wrong, in the light of his findings of fact, in going on to find loss of good repute and professional competence.

A similar analysis applies to the determination that Mr. King lost his good repute as a transport manager. Para. 16(1) of Sch. 3 to the Act requires a traffic commission to consider whether a finding that a person was no longer of good repute would constitute a disproportionate response. We recognise that the TC did not expressly address this point, but his reasons for finding that Mr. King lost his good repute as transport manager were in effect those which he gave for finding that Mr. King lost his good repute as operator. Considerations of proportionality were built into that part of the decision as explained in the preceding paragraph and it appears to us that given those reasons the TC could not realistically be expected to come to any other conclusion in respect of Mr. King’s repute as a transport manager. Para. 16(2) of Sch. 3 then makes disqualification from acting as a transport manager mandatory.

It follows that any argument of disproportionality can apply only to the TC’s decisions to disqualify Mr. King and Ms. Wallace from holding or applying for an operator’s licence, including his decision as to the length of disqualification, and to the length of Mr. King’s disqualification as a transport manager.

As to Ms. Wallace, she is not an appellant in her personal capacity, although she had a right of appeal against the TC’s decision to disqualify her when the Company’s licence was revoked. We therefore comment only that although the TC dealt with her position comparatively briefly:

In those circumstances, and having regard to Ms. Wallace’s involvement in attempting to mislead the inquiry, we would not have been inclined to find the TC’s decision plainly wrong even if we had been invited to do so.

As to Mr. King, we agree with Mr. Finnegan that his conduct was impugned by the TC to a substantially greater extent than Ms. Wallace’s conduct. We note that under para. 17(1A) of Sch. 3 to the Goods Vehicles (Licensing of Operators) Act, where a disqualification order is imposed on a transport manager because of a loss of good repute, the order cannot be cancelled earlier than one year from the date of the order. We further note that the directions given in para. 108 of Statutory Document No. 10 provide that the starting points are a minimum period of disqualification for a transport manager of one year and for an operator’s first public inquiry consideration of a disqualification period of between 1 and 3 years.

The disqualifications imposed by the TC are therefore fairly to be seen as the minimum possible. It is clear from paragraphs 43 and 61 that in imposing the disqualification as operator and determining the length of that disqualification and the disqualification as transport manager the TC had in mind Mr. King’s accident, his medical condition at the time of the double-arding offences and the fact that they happened “over a reasonably condensed period of time”. We have referred at paragraph 28.4 above to Ms. Bell’s submission that disqualification would mean that he would lose his business, which would not be appropriate “in view of his acceptance of his failings, his apology, albeit late in the day, and his overall compliance”. This submission, however, loses its weight in the light of the TC’s findings as to the use of Mr. King’s driver’s card, the attempt to mislead the inquiry and what was found to be the false evidence that he dismissed Mr. Day. The TC was right to find that Mr. King’s conduct was serious.

Mr. Finnegan’s submission brings in additional matters such as the adaption of Mr. King’s trailer so that he could operate it with his lasting disabilities and the limitations on the type of work Mr. King can now do. There was no evidence before the TC on those points and clearly there could have been such evidence. There has been no attempt to bring further evidence before us. In those circumstances the TC could not, and we do not, take into account those matters.

We have considered the cases of Gilders Transport Limited, T/2017/45, [2018] UKUT 0036 (AAC) and John Stuart Strachan t/a Strachan Haulage, T/2019/25, [2019] UKUT 287 (AAC) to which Mr. Finnegan referred. In the Gilders case the Upper Tribunal were satisfied that the case was a bad case of lack of compliance with the regulatory regime and undoubtedly a substantial number of drivers’ hours offences had been committed which the company operator had failed to detect, at least in part because no proper analysis was carried out. The company operated a fleet of 33 vehicles under 3 licences and the traffic commissioner had curtailed the licence by 20% on the basis of continuing concerns over professional competence and the need to take regulatory action. The company appealed against that decision, arguing that the disqualification of one of the transport managers was a sufficient regulatory sanction. The Upper Tribunal found itself unable to endorse the decision that 20% curtailment was appropriate and made clear that, having reviewed the evidence, its conclusions were less favourable to the company than those of the traffic commissioner. The case was remitted to the traffic commissioner for further consideration, although the Upper Tribunal recognised that in the light of his findings of fact it would be difficult for him to impose more serious regulatory action.

Strachan was another case involving substantial drivers’ hours offences and “huge failings” in analysis. Further, when the operator became aware of the DVSA’s interest, the vehicle tachographs were replaced, making it impossible to obtain access to the earlier data, and the traffic commissioner found that that was the purpose of the change. She also decided that the case fell into the severe category, but stopped short of revocation and disqualification, apparently because of the length of time the operator had been in the industry. Instead she imposed a significant curtailment, which she recognised “might take the business to the brink of survival” and against which the operator appealed. The Upper Tribunal recognised that the traffic commissioner’s decision was based on having seen, heard and assessed the witnesses and that she had conducted a careful balancing exercise. It concluded she had had the right considerations in mind and it was unable to hold that she was plainly wrong or reached a plainly wrong result in the curtailment imposed.

In both these cases the Upper Tribunal declined to interfere with the decision of a traffic commissioner who had heard and assessed the witnesses. We think the cases are to be regarded as illustrations of the fact that a wide range of potential outcomes is open to traffic commissioners in the light of their assessment of witnesses, provided that the correct legal principles are applied. Further, it does not appear that either case involved an attempt first to mislead the traffic commissioner and then an attempt to mislead the inquiry, as was the case here.