Neutral Citation Number: [2014] UKUT 0460 (AAC)                            Appeal No: T/2014/59

 

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF JOAN AITKEN,

TRAFFIC COMMISSIONER for SCOTLAND,

DATED 12 JUNE 2014

 

 

Before:

Judge M Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

Mr J Robinson, Member of the Upper Tribunal.

Mr A Guest, Member of the Upper Tribunal.

 

Appellants:

RANDOLPH TRANSPORT LTD

 

and

 

CATHERINE TOTTENHAM

 

 

Attendance:

For the Appellants:      Mr M Lindsay QC

 

Appeals heard at:     George House, Edinburgh

Date of hearing:        11 September 2014

Date of decision:       13 October 2014

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeals be dismissed.

 

The revocation and disqualifications will come into effect

at 23:59 hours on 21 November 2014.

 

Subject matter:        

Lack of candour with the Traffic Commissioner; Operation for several years without a suitably qualified transport manager; Loss of Repute; Indefinite Disqualifications.

 

Cases referred to:

In Re Anglorum Trans (UK) Ltd [2004] EWCA 998;

2005/355 Danny W Poole International;

Thomas Muir (Haulage) Ltd v. Secretary of State for the Environment, Transport and the Regions (1999 SC86);

Bradley Fold Travel Ltd and Peter Wright -v- SoS Transport [2010] Civ EWCA 695.

 

REASONS FOR DECISION:

 

1)    This was an appeal from the decision of the Traffic Commissioner for Scotland made on 12/6/2014 when she found that Randolph Transport Ltd (the operator) was no longer of good repute and revoked its operator’s licence under S.27(1) of the Goods Vehicles (Licensing of Operators) Act 1995. The Traffic Commissioner further disqualified the operator from holding or obtaining an operator’s licence anywhere in Great Britain, for an indefinite period. Miss Tottenham (as a director of the operator) was disqualified from holding or obtaining an operator’s licence anywhere in Great Britain for a period of two years, and the Traffic Commissioner made a direction under S.28(4). Finally, (as transport manager) Miss Tottenham was found to have lost her good repute and she was disqualified as a transport manager for a period of two years.

 

2)    The factual background to this appeal appears from the documents, the transcript and the Traffic Commissioner’s decision and is as follows:

(i)    The operator has been the holder of a standard international goods vehicles operator’s licence since September 2002. At the time of the public inquiry (held on 6/9/2013 and reconvened on 28/2/2014) the licence authorised the use of 10 vehicles and 10 trailers.

(ii)   The original application for a licence (received 24/4/2002) showed a sole director, namely Ms Leslie-Anne Anderson, and transport manager Mrs Mary Christina Kellie.

(iii)  In 2006, Ms Anderson took over as transport manager.

(iv) On 25/7/2012, at its five yearly renewal, the Traffic Commissioner’s office sent to the operator a checklist containing details of the operator’s licence as understood by the office, with a request that the operator confirm that the details were up-to-date. Ms Anderson was shown as the sole director. The checklist was received back on 16/8/2012. Ms Anderson was still shown as sole director, but the form was signed by Miss Tottenham as “Director”.

(v)  On 17/8/2012 the office wrote to the operator pointing out that Miss Tottenham was not listed on the Traffic Commissioner’s records. The letter asked that a “Director’s Declaration” be completed and returned by 31/8/2014. The only director then notified was Miss Tottenham.

(vi) Additionally, as part of the checklist procedure, the operator was asked to complete a Transport Manager Questionnaire. This was returned on 17/9/2012, signed by Miss Tottenham, in which she stated that she held a Standard National CPC issued in 2010. She stated her position in the company as “Director/Transport Manager”.

(vii)In the meantime, a search of Companies House had been undertaken. Companies House records showed that Ms Anderson had, in fact, resigned as a director on15/3/2007. Records also showed that Miss Tottenham and Mr C Kelly were appointed as directors on 1/6/2007. Mr Kelly then resigned as a director on 6/4/2012 and, on that date, Mr William Tottenham was appointed as a director.

(viii)       On 24/9/2012, the office wrote to the operator seeking clarification of directors and also asking Miss Tottenham to complete an application to add herself as transport manager, since her appointment had not been notified to the Traffic Commissioner’s office. The letter also pointed out that the operator held a standard international licence, so for Miss Tottenham to be accepted as transport manager she would have to submit her original international CPC.

(ix) On 19/10/2012 the office received an application to add Miss Tottenham as transport manager, but no international CPC was submitted.

(x)  On 5/11/2012 the office again sought clarification of the operator company’s directors and also requested further information about the transport manager, as the Traffic Commissioner needed to be satisfied that Miss Tottenham was suitably qualified. The letter also asked when Ms Anderson had ceased to be transport manager, and sought an explanation for the failure to notify the office of her departure.

(xi) No reply to this letter was received and so, on 5/12/2012, a telephone conversation took place between the Traffic Commissioner’s office and the operator. Mr Tottenham, speaking on behalf of the operator, apparently said that the letter of 5/11/20123 had not been received. By email sent immediately that day, a caseworker in the Traffic Commissioner’s office again supplied a copy of the letter, and asked “Please respond to the letter in full by no later than 12 December 2012. Please also advise what role Bill Tottenham holds in the company”.

(xii)Miss Tottenham replied by email later that day, stating:

“I have filled out the form and it’s away in the post. Bill Tottenham is a driver at Randolph Transport Ltd.”.

(xiii)       On 6/12/2012 Miss Tottenham again sent emails to the office, attaching a copy of the director’s questionnaire (Page 74 of our bundle) that was, in fact, a request to add Mr C Kelly as director. The form was dated 6/12/2012 – some eight months after Mr Kelly had resigned as a director, to be immediately replaced by Mr Tottenham.

(xiv)       In her emails, Miss Tottenham said:

“We notified the traffic commissioner when Lesley Anderson left a few years back, she started up on her own. We notified them then that I would be taking over as transport manager. When we renewed our licence, we received a letter to say that I had 6 months to sit and pass my international CPC, so I am booked in for Feb 2013 to sit the exam.”

In a second email, Miss Tottenham said:

“I am sitting my international CPC in February 2013 with the exam in March 2013. Lesley Anderson is no longer a director in Randolph Transport Ltd.”

(xv)        The caseworker responded immediately pointing out that there was nothing on file regarding the resignation of Ms Anderson as transport manager. Indeed, the licence had been renewed in 2012 and, at that time, records indicated that Ms Anderson was both sole director and transport manager. The caseworker also said that there was no record of a letter from the office giving Miss Tottenham six months to pass her international CPC. The caseworker asked Miss Tottenham to send her a copy of the letter. No such letter was sent, but Miss Tottenham passed her International CPC in 2013, and her certificate is dated 15/4/2013. She was eventually formally appointed transport manager on 3/6/2013.

(xvi)       Also in June 2013, the company was issued with an “S” marked prohibition due to “registration plate missing where legally required”.

(xvii)      On 9/8/2013 a call-up letter was sent to the operator. The issues raised included the material changes in relation to directors and transport managers, failure to notify the changes, failure to have a transport manager in place from the time of Ms Anderson’s resignation in March 2007 (having served as transport manager for less than a year), and making false declarations in the checklist and in subsequent correspondence.

(xviii)     At the time of the public inquiry on 6 September 2013, the directors of the operator were Miss Tottenham and her father Mr William Tottenham. Both attended at the public inquiry, represented by Mr N Kelly, their solicitor.

(xix)       Miss Tottenham told the Traffic Commissioner that Ms Anderson had left the company in March 2007 under a cloud. She had (it was alleged) stolen from the family. Miss Tottenham and Mr Kelly came on as directors three months later, but these changes were not notified because “it was a complete oversight”. She was not aware that such changes had to be notified.

(xx)        The Traffic Commissioner pointed out that Ms Anderson’s departure also left the operator, a company holding a standard international operator’s licence, without a transport manager. Miss Tottenham said that she was performing the job of transport manager even though she did not have a CPC of any kind in 2007, and when she obtained a CPC in 2010, it was a national CPC and not an international CPC.

(xxi)       In 2012, when the licence came up for renewal and the checklist documents were sent, the opportunity to put the record straight was not taken. Again, Miss Tottenham said that this was “a complete oversight” – although she had identified herself as a director.

(xxii)      In relation to the answer that Mr Tottenham was a driver when, in fact, he was also a director, Miss Tottenham said that she had not understood the question:

“I thought that she meant what did he, what was he actively doing at the minute and he, he was, he was driving …”

(xxiii)     Mr Tottenham also gave evidence. In answer to questions from Mr Kelly, Mr Tottenham accepted that, many years before, he had held an operator’s licence that had been revoked by the previous Traffic Commissioner. His evidence was then taken to the current state of the fleet, which had received some positive publicity in the industry press.

(xxiv)    The Traffic Commissioner put it to Mr Tottenham that he had sought to hide his presence and involvement in the company. Mr Tottenham denied that he thought his involvement would generate any interest. The Traffic Commissioner said:

“Why do you not think we would look at your role in the business? You are a revoked operator; my predecessor did not take to you; Lesley-Ann disappears and it is Lesley-Ann that gets the licence ..”

Mr Tottenham said that the failure to disclose his involvement in the company was not intentional.

(xxv)     The Traffic Commissioner suggested that, behind the framework of a family trust, Mr Tottenham was the true owner of the business and was in charge of the business - and that he had deliberately concealed his role in it because he was “a revoked man”. Mr Tottenham said:

“At the end of the day, if I’d employed another transport manager, my name still wouldn’t have been mentioned. I wasn’t up … I didn’t use my licences for murder or interfering with children or something. We lost them for drivers’ hours”.

(xxvi)    After hearing submissions, the Traffic Commissioner reserved her decision.

(xxvii)   What happened next is summarised in the Traffic Commissioner’s written decision:

“There then followed a most unexpected turn in the case. Mention of the name “Tottenham” (as distinct from Randolph Transport) came to the ear of a long serving member of staff who had not been involved in this case or the public inquiry. He said to the caseworker that he was sure Mr Tottenham had been disqualified as an operator. This prompted enquiries in the office and I was informed of these. Unfortunately, the public inquiry files had been destroyed and so the current Edinburgh office staff did what they could to establish if it were the case that Mr William Tottenham was a disqualified person. This included looking at archived applications and decisions; asking VOSA if they had any records; asking the Deputy Traffic Commissioner, Mr McFarlane if he had any papers, and searching the trade press.”

(xxviii)  As a result of these searches and enquiries, it was established that Mr Tottenham had not only had operator’s licences revoked, he had - in 2000 - been disqualified indefinitely from holding or applying for an operator’s licence. At least one case had involved falsification of tachograph records.

(xxix)    Since the Traffic Commissioner had not promulgated her written decision, she decided to reconvene the public inquiry. An addendum was prepared and the operator and Miss Tottenham were called back to the re-convened public inquiry, which took place on 28/2/2014. On this occasion, Mr T Nesbitt of counsel appeared to represent the company and Miss Tottenham. He made it clear that he was not representing Mr Tottenham.

(xxx)     The Traffic Commissioner told Mr Nesbitt that “we cannot understate the seriousness of this case now.”

(xxxi)    Mr Tottenham was called to give evidence and he said that, although he recalled that he had been disqualified, he did not appreciate that it was indefinite. He said that he had become a director of the operator company for tax reasons. He had not appreciated that this was a potential problem for the company, and this was not the reason why his involvement as a director had not been disclosed. In any event, he had now resigned.

(xxxii)   Mr C Kelly gave evidence. He said that neither he, nor Miss Tottenham, had been aware that Mr Tottenham had been disqualified indefinitely. Mr Kelly explained that the company was owned by a trust, a structure in place for tax reasons, and the directors were remunerated by the company. The level of remuneration was set by the directors, and profits were retained in the reserves of the company.

(xxxiii)  Miss Tottenham gave evidence. She said that she did not know that her father had been disqualified. In 2000, she had been a teenager. Had she known, then Mr Tottenham would not have been made a director in 2012. She was also prepared to undertake that Mr Tottenham would have nothing further to do with the company, in any capacity whatsoever.

(xxxiv) Eventually, the Traffic Commissioner heard lengthy submissions from Mr Nesbitt, after which she reserved her decision.

(xxxv)  In the written decision dated 12/6/2014 the Traffic Commissioner summarised the evidence and submissions. She found as fact that Mr Tottenham knew very well that he had a poor compliance record, he had had operator’s licences revoked, and he had been disqualified indefinitely. He had no information on which he could reasonably have concluded that the disqualification had expired, and he had made no inquiry of the position.

(xxxvi) The Traffic Commissioner noted the various changes, particularly the departure of Ms Anderson as both director and transport manager, and the failure to notify these changes. The position only began to emerge in 2012 following (and arising from) the 5 year checklist – and only after numerous letters, emails and threats of revocation.

(xxxvii)                 On 5/12/2012, in response to a direct and specific query as to the role of Mr Tottenham, Miss Tottenham merely told the office was that Mr Tottenham was a driver. That answer was one that the Traffic Commissioner considered to be deliberately misleading, as it failed to mention that Mr Tottenham was, by then, a director of the company. On the following day, Miss Tottenham sent in a director’s questionnaire that was, in fact, a request to add Mr C Kelly as director – at a time when he was not a director, having been replaced by Mr Tottenham some eight months earlier.

(xxxviii)               The Traffic Commissioner also found that, by the time she became a director of the company, Miss Tottenham knew of her father’s position. This was why she had been placed in the company, and it was why she failed to disclose her father’s role.

(xxxix) The operator was without a transport manager from 2007 to Spring 2013. The Traffic Commissioner found that this was not an oversight, it was a deliberate disregard for the requirements of an operator’s licence. There were reasons why concealing the true position would be both necessary and desirable from the operator’s point of view. Miss Tottenham’s claims that, in 2012, she had been given 6 months to pass her international CPC were not true. No such allowance had been given and no letter had been sent.

(xl) The Traffic Commissioner found that there was “a spider’s web of shareholding” but this was simply to avoid inheritance tax and, for all practical purposes, this was Mr Tottenham’s business.

(xli)The Traffic Commissioner considered the appropriate questions and weighed in the balance the undertaking offered that Mr Tottenham would play no part in the business. However, she found that she could not trust the operator or Miss Tottenham, and she reflected on the fact that at no point throughout the first part of the public inquiry had she been told about Mr Tottenham’s disqualification. In the event, the Traffic Commissioner made the orders set out above, in this decision.

 

3)    The Grounds of Appeal raise four issues. First, it is contended that the Traffic Commissioner failed to take into account that Mr Tottenham was no longer a director at the time she made her decision, and an undertaking had been given that he would have no involvement in the company. The revocation had been disproportionate. Second, the indefinite disqualification imposed in relation to the operator failed to have regard to the separate legal personalities and capacities of the company and Mr Tottenham as an individual. An indefinite disqualification was purely penal in nature and was disproportionate. Third, there was no evidence that, at the date of the decision, Miss Tottenham was no longer of good repute as transport manager. None of the matters relied upon had occurred at a time when Miss Tottenham was transport manager. Fourth, the disqualifications, both from holding or applying for an operator’s licence, and as transport manager, were disproportionate and failed to separate out the distinct roles of director and transport manager.

 

4)    At the hearing of this appeal, the Appellants were represented by Mr Lindsay QC who submitted a skeleton argument for which we were grateful.  The skeleton argument and submissions covered much the same points as the Grounds of Appeal.

 

5)    The Traffic Commissioner, it was said, had failed to assess the position as of the date of the hearing and had failed to give adequate weight to the undertaking as to Mr Tottenham. There were also other positive points to consider, including the company’s good maintenance record, and the loss of employment that revocation would cause. The disqualification on top of the revocation would “kill the company” and was not justified on the facts.

 

6)    Mr Lindsay submitted that there was an inconsistency in the Traffic Commissioner’s approach towards Miss Tottenham. On the one hand, she found that Miss Tottenham had been too trusting and that the real driving force behind the company was Mr Tottenham, and yet she had then blamed Miss Tottenham for the failures and deceptions found, and caused her to lose her repute. The Traffic Commissioner, it was said, had approached the evidence with a closed mind, which had polluted and contaminated her assessment of the witnesses, and the evidence had been twisted into a form it could not bear. The further period of disqualification was disproportionate and irrational.

 

7)    Mr Lindsay raised the Court of Appeal decision In Re Anglorom Trans (UK) Ltd [2004] EWCA 998. Here the court had allowed an appeal against disqualification because it was not possible to see that the required balancing exercise had been undertaken. Per curiam, it was also held on the facts of the case that it was important to keep the responsibilities, liabilities and culpabilities of the company and its transport manager separate.

 

8)    In our judgement, this is not a case that raises any substantive issue of law. The Traffic Commissioner’s approach seems to us to have been fair and balanced and, for all that the two public inquiry hearings took a significant amount of time, this was more a reflection of the Traffic Commissioner’s willingness to allow all possible points to be put than of any particular complexity in the issues arising.

 

9)    The facts are straightforward and are set out earlier in this decision. On any view, this operator was without a suitably qualified nominated transport manager exercising continuous and effective control from early 2007. There was a complete failure to notify the Traffic Commissioner’s office at the time of Ms Anderson’s departure, and there was a failure to notify the Traffic Commissioner’s office of Mr Tottenham’s appointment as a director in 2012. On 5/12/2012, when a clear and specific question was asked by a diligent caseworker, Miss Tottenham gave an answer that failed to disclose that Mr Tottenham was a director. On the following day, 6/12/2012, Mr Kelly’s name was put forward as a director when, in fact, he had resigned as a director 8 months previously and the only other director (apart from Miss Tottenham) at that time was Mr Tottenham, who had replaced Mr Kelly.

 

10)  Throughout the first part of the public inquiry, before the Traffic Commissioner had been made aware that Mr Tottenham had been disqualified indefinitely, no mention was made of the disqualification by Mr Tottenham, Miss Tottenham, or their solicitor. Although it was clear to the Traffic Commissioner that a real effort had been made to conceal material changes, it was not entirely clear to her why this was. The subsequent revelation of the disqualification provided the explanation.

 

11)  It was clearly necessary for the Traffic Commissioner to assess whether or not the concealments, the lack of candour, and the repeated provision of misleading information to the Traffic Commissioner’s office, and in due course to the Traffic Commissioner herself, were deliberate deceptions. That was an assessment that only the Traffic Commissioner could make, having had an opportunity to watch and listen to the witnesses. We find no flaw in her analysis and we find nothing disproportionate in her conclusions.

 

12)  Although repute must be considered as at the date of the decision, that does not mean that the past becomes irrelevant. In many cases, the present is simply the culmination of past events. The issue that the Traffic Commissioner considered was whether, given that Mr Tottenham had resigned, and given the undertaking offered, she could regard the past as water under the bridge and trust the operator to comply in future. She found that she could not. Getting the truth out of the company from 2012 up to the point of the second public inquiry had been a monumental exercise in persistence and diligence on the part of caseworkers (whose efforts are to be commended), matched by a monumental exercise in concealment, obfuscation and deceit on the part of the operator and Miss Tottenham. We are not at all surprised that the resignation and undertaking cut no ice with the Traffic Commissioner. She was, in our view, perfectly entitled to regard the undertaking as worthless, given the history.

 

13) So far as the Anglorom case is concerned, the Transport Tribunal looked at this in 2005/355 Danny W Poole International and said:

 

“We have to say that it appears that the Anglorom case was decided without consideration of all relevant cases.  In particular, we have also to say that references in the Court of Appeal to “punishment” and to “this most draconian order” are not consistent with the approach of the five-judge Court of Session decision in the Thomas Muir case.  Until the matter is considered again by an appellant court we consider that the Thomas Muir approach should be followed ....”

 

14) In Thomas Muir (Haulage) Ltd v. Secretary of State for the Environment, Transport and the Regions (1999 SC86) the Court of Session held that:

 

“…..  it does not follow that a traffic commissioner is prevented from taking into account, where appropriate, some considerations of a disciplinary nature and doing so in particular for the purpose of deterring the operator or other persons from failing to carry out their responsibilities under the legislation.  However, taking such considerations into account should not be for the purpose of punishment per se, but in order to assist in the achievement of the purpose of the legislation.  This is in addition to the obvious consideration that a direction may be used to provide direct protection to the public against dangers arising from the failure to comply with the basis on which the licence was granted.  Whether or not such disciplinary considerations come into play must depend upon the circumstances of the individual case.”

 

15) Referring to the Senior Traffic Commissioner’s Statutory Guidance (No 10) we find that the conduct of the operator and of Mr and Miss Tottenham was conduct designed to strike at the essential relationship of trust between the Traffic Commissioner and the operator, and was conduct designed to mislead the Office of the Traffic Commissioner. On top of that, the deliberate failure to have any suitably qualified transport manager for a period of around 6 years was a deliberate act or omission that potentially compromised road safety and certainly resulted in the operator gaining an unfair commercial advantage. This puts the case at the severe end of the spectrum. We consider that an indefinite disqualification was entirely appropriate for a company that the Traffic Commissioner, rightly, regarded as a vehicle for Mr Tottenham’s wish to continue in the industry, despite previous preventative regulatory action. We consider it to be wholly unrealistic to try and remove Mr Tottenham’s culpability from that of the company.

 

16) We also consider it wholly unrealistic to try and separate out Miss Tottenham’s culpability as a director, and her repute as a transport manager. In assessing her culpability and her repute as at the date of decision, the Traffic Commissioner was entitled to consider Miss Tottenham’s conduct as a director, and was not limited to Miss Tottenham’s actions or failings as a transport manager.

 

17) In fact, the Traffic Commissioner was duty bound to have regard to any relevant matter, and we consider that Miss Tottenham’s conduct as a director, and her conduct prior to being nominated as transport manager, were relevant to the assessments of both culpability and repute that the Traffic Commissioner had to undertake. Miss Tottenham only became the nominated transport manager in 2013, but she considered that she had been acting as such since 2007. In any event, she had presided over, colluded in, and tried to cover-up, a situation relating to the operator’s directors and transport manger of such seriousness that, inevitably, it compromised her fitness to hold an operator’s licence as an individual and as a director, and it fatally damaged her repute. Such positive points as there were did little to mitigate the serious failings and breach of trust arising, and we find nothing inconsistent in the Traffic Commissioner’s analysis of Miss Tottenham’s culpability.

 

18) Having decided that Miss Tottenham did not have good repute as of the date of her decision, the Traffic Commissioner had no choice but to disqualify her as a future transport manager, and we consider that the period of disqualification was measured and proportionate. There were no remedial measures that could be envisaged, save for the hope that, with the passage of time, she will have learned her lesson.

 

19) We have approached this appeal having regard to the guidance of the Court of Appeal in Bradley Fold Travel Ltd and Peter Wright -v- SoS Transport [2010] Civ EWCA 695. We have asked ourselves whether the Traffic Commissioner’s approach to the witnesses and to the evidence, her process of reasoning, and the application of the relevant law, requires us to adopt a different view from that of the Traffic Commissioner. The answer to that question is ‘No’ for the reasons that we have given. Accordingly, the appeals are dismissed. The revocations and disqualifications will come into effect at 23:59 hours on 21 November 2014.

 

20) We should like to commend the diligence of the long serving member of staff who had not been involved in this case or the public inquiry but who recalled, many years after the event, that Mr Tottenham had been disqualified as an operator. The steps taken to alert the Traffic Commissioner of the position were necessary in the interests of justice and enabled the Traffic Commissioner to have full command of the relevant facts.

 

21) Finally, in relation to indefinite disqualifications generally, the degree to which such disqualifications should continue to be regarded as draconian is tempered by the right of any disqualified individual or former operator to apply to have the disqualification brought to an end. The test in such cases will be whether or not the public interest requires that that the disqualification should be maintained; the onus of establishing that the public interest does not so require will be on the applicant; and the starting point in nearly every case will be the original circumstances of, and reasons for, the disqualification – together with any evidentially established relevant events or developments occurring or arising subsequently, and the effect (if any) of the passage of time.

 

Judge Mark Hinchliffe, DCP

13/10/14