[2024] UKUT 47 (AAC)

The legislative framework relating to this appeal is contained in the Goods Vehicles (Licensing of Operators) Act 1995. The relevant provisions are as follows:

“13.(1) On an application for a standard licence a traffic commissioner must consider-

(a)

whether the requirements of sections 13A and 13C are satisfied; …

13A. (1) The requirements of this section are set out in subsections (2) and (3).

(2)

The first requirement is that the traffic commissioner is satisfied that the applicant –

…

(b)

is of good repute (as determined in accordance with paragraphs 1 to 5 of Schedule 3), …

(3)

The second requirement is that the traffic commissioner is satisfied that the applicant –

(a)

is an individual who -

(i)

is professionally competent (as determined in accordance with paragraph 13 of Schedule 3), and

(ii)

has designated a suitable number of individuals (which may include the applicant) who satisfy the requirements set out in paragraph 14A(1) and (3) of Schedule 3, or

(b)

if the applicant is not an individual, or is an individual who is not professionally competent, has designated a suitable number of individuals who satisfy the requirements set out in paragraph 14A(1) and (3) of Schedule 3.

…

(5)

In this Act, “transport manager” means an individual designated under subsection (3)(a)(ii) or (b).

26.(1) Subject to the following provisions of this section … a traffic commissioner may direct that an operator’s licence be revoked, suspended or curtailed … on any of the following grounds -

…

(c)

that during the five years ending with the date on which the direction is given there has been -

…

(iii)

a prohibition under section 69 or 70 of the Road Traffic Act 1988 … of the driving of a vehicle of which the licence-holder was the owner when the prohibition was imposed;

…

(e)

that the licence-holder made, or procured to be made, for the purposes of –

(i)

his application for the licence …

a statement of fact that, whether to his knowledge or not, was false …

(f)

that any undertaking recorded in the licence has not been fulfilled;

…

(h)

that since the licence was issued or varied there has been a material change in any of the circumstances of the licence-holder that were relevant to the issue or variation of the licence …

27.(1) A traffic commissioner shall direct that a standard licence be revoked if at any time it appears to him that –

(a)

the licence-holder no longer satisfies one or more of the requirements of section 13A, or

(b)

the transport manager designated by the licence-holder no longer satisfies one or more of the requirements set out in paragraph 14A(1) and (2), or (1) and (3), of Schedule 3 …

28.(1) Where, under section 26(1) or 27(1), a traffic commissioner directs that an operator’s licence be revoked, the commissioner may order the person who was the holder of the licence to be disqualified (either indefinitely or for such period as the commissioner thinks fit) from holding or obtaining an operator’s licence …

(4)

Where a traffic commissioner makes an order under subsection (1) in respect of any person, the commissioner may direct that if that person, at any time or during such period as the commissioner may specify –

(a)

is a director of, or holds a controlling interest in –

(i)

a company which holds a licence of the kind to which the order in question applies, or

(ii)

a company of which such a company is a subsidiary, or

(b)

operates any goods vehicle in partnership with a person who holds such a licence,

that licence of that company or, as the case may be, of that person, shall be liable to revocation, suspension or curtailment under section 26.

(5)

The powers conferred by subsections (1) and (4) in relation to the person who was the holder of a licence shall be exercisable also –

(a)

where that person was a company, in relation to any director of that company …

Schedule 3, paragraph 1.(1) In determining whether an individual is of good repute, a traffic commissioner may have regard to any matter but shall, in particular, have regard to –

(a)

any relevant convictions of the individual …

(b)

any other information in his possession which appears to him to relate to the individual’s fitness to hold a licence.

(2)

In determining whether a company is of good repute, a traffic commissioner shall have regard to all the material evidence including, in particular –

(a)

any relevant convictions …

(b)

any other information in his possession as to the previous conduct of –

(i)

any of the company’s officers, servants or agents, or

(ii)

any of its directors, in whatever capacity,

if that conduct appears to him to relate to the company’s fitness to hold a licence.

[Paragraphs 2 to 5 contain provisions about convictions.]

[Paragraph 13 makes provision for the certification of professional competence.]

14A.(1) A transport manager must be –

…

(b)

of good repute (as determined in accordance with paragraphs 1 to 5),

(c)

professionally competent (as determined in accordance with paragraph 13), and

(d)

able to manage effectively and continuously the operator’s transport service.

16.(1) In proceedings under this Act … for determining whether a person who is a transport manager is of good repute or professionally competent, a traffic commissioner must … consider whether a finding that the person was no longer of good repute or (as the case may be) professionally competent would constitute a disproportionate response.

(2)

If the commissioner determines that the person is no longer of good repute or (as the case may be) professionally competent, the commissioner must order the person to be disqualified (either indefinitely or for such period as the commissioner thinks fit) from acting as a transport manager.”

It is well established that the task of the Upper Tribunal when considering an appeal from a decision of a traffic commissioner is to review the material before the traffic commissioner, and the Upper Tribunal will only allow an appeal if the appellant has shown that “the process of reasoning and the application of the relevant law require the tribunal to take a different view”, as explained in Bradley Fold Travel Limited and Peter Wright v. Secretary of State for Transport [2010] EWCA Civ 695, [2011] R.T.R. 13, at paragraphs 30-40. This is sometimes summarised as requiring the Upper Tribunal to conclude that the traffic commissioner was plainly wrong. 

It is also well established that when considering mandatory revocation of a standard operator’s licence the questions a traffic commissioner will need to consider will include how likely the operator is to operate in compliance with the licensing regime in future and whether the conduct which has taken place is such that the operator should be put out of business. The first of those questions was identified in Priority Freight Limited and Williams 2009/225 and is commonly referred to as “the Priority Freight question” and the second was identified in Bryan Haulage Limited (No. 2) 217/2002 and is commonly referred to as “the Bryan Haulage question”. It is clear from the decision in Bryan Haulage that the question was framed in the light of the need for a relationship of proportionality between the conduct found to have occurred and the sanction necessarily to be imposed. If a positive answer is to be given to the question, it is because revocation is a proportionate response to the relevant conduct. The Priority Freight question is regarded as a preliminary question, to be asked before the Bryan Haulage question is asked, because, as explained in Priority Freight, if the evidence demonstrates that the operator is very likely to be compliant in future, that may indicate that the case is not one in which the operator should be put out of business.