Romantiek BVBA v Simms & Ors

The Claimant is a company registered in Belgium. Between about 2000 and at least about 2004 it traded as a road haulier. During this period its sole director was Mr Garith Banham (hereinafter referred to as “GB”) and, according to him, he was the person who controlled the Claimant’s business activities in this period.

The First Defendant was the Traffic Commissioner for the Eastern Traffic Area of the United Kingdom from 1 June 1998 to 31 March 2007. The Second Defendant was the Compliance Group Manager in the Eastern Traffic Area until his retirement in February 2004. The Third Defendant is said to be vicariously liable for tortious acts on the part of the First Defendant and Second Defendant.

In these proceedings the Claimant seeks damages against the Defendants by reason of alleged tortious conduct on the part of the First and Second Defendants. Specifically, the Claimant alleges that each was guilty of misfeasance in public office, each was guilty of unlawful interference with trade and each was guilty of breaches of European Community Law. Each alleged tort is said to have arisen from the same acts and omissions on the part of the First and Second Defendant – described in summary form but accurately in the Claim Form by which these proceedings were instituted.

The hearing before me was confined to the issue of liability in accordance with an order made by Master Rose on 4 December 2007. However, to some extent, inevitably, issues of causation were also considered.

By the late 1990s GB had considerable experience in the road haulage business. As I understand it he was a director of a company, Heavypack Haulage Limited (hereinafter referred to as “Heavypack”) which held a standard national operators licence (reference OF231241) authorising the use of 8 vehicles and 10 trailers for haulage business. He also controlled or was involved in the activities of an organisation known as Mendlesham Group Haulage which appears to have been an umbrella organisation for a number of companies involved in road haulage activities.

GB’s son, Gary, was also involved in road haulage activities in the late 1990s. He was the controlling mind of a company known as Powerfavour Limited (hereinafter referred to as “Powerfavour”) which held a standard national operators licence authorising the use of 9 vehicles and 9 trailers for road haulage business.

By the year 2000 Heavypack was not trading. It was a dormant company according to GB but it still held the licence to which I have referred.

Until the late 1990s the Claimant operated a sales room in Belgium for the sale of antiques. In 1998, or thereabouts, however, it became insolvent and it ceased to trade. Upon a date which is not specified precisely but some time in 2000 GB purchased the Claimant. He says that he paid off its debts and acquired its shares and his motivation for so doing was that he intended to use the Claimant as a means of trading in the road haulage business. He explains that decision in paragraph 3 of his witness statement dated 10 September 2008. I quote:-

“……….At the time I thought there might be opportunities to develop haulage work on the continent, and it was increasingly well known to everyone involved in UK and Continental Haulage work that costs associated with undertaking haulage were lower in some European countries. At the time I understood, and still understand, that there was nothing wrong at all with trying to take advantage of these cost benefits, and that this was what being part of the European Union was all about.”

During the course of 2000 the First Defendant instigated an investigation of Powerfavour. He did so by calling the company to a public inquiry by a letter of notification dated 14 September 2000. I need not delve into the details of that inquiry. Powerfavour did not appear; neither did Mr Gary Banham. After considering the evidence which had been assembled the First Defendant revoked Powerfavour’s operators licence and disqualified Mr Gary Banham indefinitely from holding or obtaining such a licence. The First Defendant, clearly, took a very poor view of the activities of Powerfavour and Mr Gary Banham. He found that Mr. Banham had a “contemptible disregard” for the laws relating to the operating of goods vehicles.

It is also worthy of mention that the First Defendant heard evidence at the public inquiry into the activities of Powerfavour from a Mr Rodney Bragg, an officer of HM Customs and Excise (as it then was). He gave evidence of a number of incidents involving vehicles whose ownership and identity “was confusingly presented as either Powerfavour Limited, Mendlesham Haulage Limited or Heavy Pack Haulage Limited”.

During the course of the cross-examination of GB by Mr Tam QC in these proceedings Mr Tam sought to demonstrate that many if not all of the vehicles which had been operated by Powerfavour were used by the Claimant once the licence of Powerfavour was revoked. GB’s answers to this line of cross-examination were vague, in the extreme. However, it seems highly probable to me that many of the vehicles (if not all) which had been used by Powerfavour found their way to Belgium for use by the Claimant, more or less as soon as the licence of Powerfavour was revoked.

Once the Claimant had been acquired by GB, it took the step of applying for a licence in Belgium for vehicles with which to operate a road haulage business. The application was made to a Ministry in Belgium known as the “Ministerie san Verkeer en Infrastructur”. The licence was duly granted and the grant was accompanied, so GB understood, by authorisations called Community Authorisations. The Claimant understood the effect of such authorisations to be that it permitted the Claimant to conduct international haulage work and what are known as cabotage operations in other member states of the European Union, including, of course, Great Britain.

Having obtained the necessary licence and authorisation, the Claimant began to trade. At its peak, according to GB, the Claimant was authorised to use and was in fact operating 20 vehicles and 20 trailers.

In his witness statement GB says that the Claimant established a number of lucrative trading relationships, some of which were based upon old connections in the east of England. The Claimant forged contractual relationships with three companies, in particular; they were Securicor Limited (hereinafter called “Securicor”), the Medite Shipping Company Limited (hereinafter called “Medite”) and AM Searle Shipping Limited (hereinafter called “Searle”).

It is common ground that the work which the Claimant undertook for these companies was, if not exclusively, at least very substantially, work which was undertaken in Great Britain. Essentially, as I understand it, each of the three companies named above had extensive haulage work and they subcontracted part of that work to the Claimant. To repeat, my understanding is that either the whole or a very substantial part of the haulage work involved transportation from docks in the east of England to other parts of Great Britain.

It also seems to me to be clear that the vehicles operated by the Claimant in the course of this work were based at Mendlesham in Suffolk. Again, as I understand it, there is no dispute about that basic fact. However, GB told me that from time to time and in any event on at least one day per month each of the tractors used in this work would be taken to Belgium. Usually that would be for the purpose of maintenance and/or refuelling. GB told me that this was done for two reasons. One reason was that he wished to comply with his legal obligations under the legal provisions relating to cabotage then prevailing. Second the tractors were taken to Belgium because maintenance and fuel costs were cheaper in that country.

The First Defendant inevitably became aware of the Claimant’s activities. I say, inevitably, because its haulage work in England was, essentially, centred on the area for which the First Defendant was the Traffic Commissioner. It appears that the First Defendant was provided with information about the Claimant by Suffolk Police. He understood from the Police that the vehicles which had been operated by Powerfavour had been re-registered and re-liveried to the Claimant and that the vehicles were in fact based in England rather than in Belgium. The First Defendant’s information from the Police also indicated that the vehicles were being controlled by Mr Gary Banham and not by GB (see paragraph 5 of the First Defendant’s witness statement). It seems clear that the First Defendant must have received at least some information from the Police in 2001. I say that since he acknowledged that during the course of 2001 he made a visit to Belgium to ascertain the appropriate procedure to be adopted if he wished to report the activities of the Claimant to the Belgian licensing authority.

During the course of cross-examination by Mr David Phillips QC, on behalf of the Claimant, the suggestion was made to the First Defendant that his visit to the Belgian authority was unusual if not unprecedented. The First Defendant did not agree but, in any event, it seems to me that there can be little doubt that his reasons for travelling to Belgium were as he described them to be.

On 6 February 2002 the First Defendant wrote to the appropriate official in Belgium to report the Claimant’s activities as I have described them above. It is not necessary to set out the letter in full. It suffices that I say that by that date the First Defendant had received information in writing from the Police and it was that information which formed the substance of his complaint to the Belgian authority. It is to be observed, however, that the First Defendant also suggested in terms that the Belgian authority should consider the revocation of the licences granted in Belgium to the Claimant.

In the light of this letter the licensing authority in Belgium instigated an investigation. That investigation culminated, in the first instance, in a decision dated 21 June 2002. The decision was that the Claimant’s licence for domestic haulage and its licence for community haulage were revoked for an unspecified duration “i.e. until such time as the undertaking fully complies with the requirements made of a permanent establishment in Belgium, …..”. The licensing authority also provided that the community licence was revoked for a period of 45 days and that 8 certified copies of the community licence should be revoked for a period of 90 days.

As was his right, the Claimant appealed against the licensing authority’s decision. The appeal decision was issued on 14 February 2003 and I deal with the decision and its effect below. I should say at this stage, however, that the 45 day period mentioned in the preceding paragraph took effect from 31 December 2002 and subsisted to 14 February 2003.

Meanwhile on 23 July 2002 Heavypack applied to the First Defendant to vary the terms of its licence. The variation sought was the authorisation of an additional 12 vehicles and 12 trailers i.e. additional to the 8 vehicles and 10 trailers already authorised. The application was opposed by Suffolk Police on several grounds including a ground to the effect that GB and Heavypack were not of good repute (as to the significance of “good repute” see the next section of this judgment).

On 2 January 2003 Heavypack applied to the First Defendant for an interim licence to authorise the use of 12 Belgian registered vehicles for haulage. On 8 January 2003 the First Defendant refused the application. On 24 January 2003 Heavypack applied to specify 7 Belgian registered vehicles under its existing licence. That possibility arose, as I understand it, because although the licence authorised 8 vehicles none were specifically identified. The First Defendant also refused that application.

On 14 February 2003, as I have said, a decision was made upon the Claimant’s appeal against the decision of the Belgian licensing authority. In summary, the Claimant succeeded in its appeal against the indefinite revocation of its licences but the appeal against the 45 day revocation failed.

In light of the fact that the Belgian licence was revoked for a period between 31 December 2002 and 14 February 2003 and the fact that the First Defendant had refused the application for an interim licence and the application to specify 7 Belgian vehicles under the Heavypack licence there should have been a cessation of the work normally undertaken by the Claimant in Great Britain. However there can be little doubt that during this period trade continued with Securicor, Medite and Searle and that the vehicles licensed in Belgium were the vehicles used for that trade.

By letter dated 26 February 2003, the First Defendant gave notice of his intention to hold a public inquiry. The letter, which was long and detailed, made it clear that the First Defendant intended to conduct a much wider ranging inquiry than simply whether or not to grant the variation to its licence sought by Heavypack. He specified that he intended to inquire into whether or not Heavypack and GB had lost their good repute and in that context he would examine the activities of GB as it related to the Claimant. The date for the commencement of the inquiry was given as 21 March 2003.

On 28 February 2003, Mr. Ripman, the solicitor acting on behalf of Heavypack, (hereinafter referred to as (“JR”) requested an adjournment of the inquiry on the grounds that he was not available to conduct the hearing. The First Defendant refused the application. However by letter dated 6 March 2003 JR renewed the application for an adjournment and this application was granted. The inquiry was re-fixed for 19 May 2003.

By letter dated 26 March 2003 JR wrote to the First Defendant as follows:-

“I have great difficulty in making the next observation. However the observation needs to be made. Garith Banham, my witness at the PI, believes that the Traffic Commissioner is “out to get him”. I do not subscribe to this view. Mr Banham tells me that the Traffic Commissioner made a personal appearance at the Counterpart Office in Belgium and made representations in relation to the Belgian Operators License issued to Romantiek BVBA. Whilst I personally have absolutely no problem whatsoever with the Traffic Commissioner conducting the PI there is a perception with my Client that Heavypack Haulage Ltd will not get a fair hearing. As I indicated earlier, I raise this issue with enormous reluctance but my experience is that there must be a perception from the Operator that the PI is conducted with complete and total fairness and objectivity”.

The public inquiry opened on 19 May 2003. It was conducted by Mr Robert Lockwood, a Deputy Traffic Commissioner. I stress that the fact that Mr Lockwood’s appointment to conduct the inquiry was not a consequence of the letter referred to in the preceding paragraph.

As it happened, however, the inquiry could not be concluded. The consequence was that it was adjourned to 23 July 2003. On 25 June 2003 JR requested an adjournment. That application was refused on 27 June 2003. On 14 July 2003 the First Defendant gave notification of the fact that he intended to conduct the public inquiry. JR responded immediately to the effect that this was inappropriate given that the inquiry was part heard and the fact that Heavypack did not believe that it could obtain a fair hearing from the First Defendant. Despite this protest, however, the First Defendant decided to preside over the inquiry.

In advance of the hearing on 23 July 2003 JR submitted a Skeleton Argument to the First Defendant. Somewhat unusually, on any view, the First Defendant responded to that Skeleton Argument by a letter dated 22 July 2003. One of the points to which he responded was whether it was appropriate for him to preside. He took the view that it was.

The public inquiry took place over two days – 23 July 2003 and 12 August 2003. The First Defendant issued his decision on 27 August 2003. He refused the application of Heavypack to vary the terms of its licence. He found, also, that Heavypack had lost its good repute and, therefore, he revoked its licence. He made a further order that GB and Heavypack should be disqualified for an indefinite period from holding or obtaining an operators licence in any traffic area.

The central thrust of the case presented by Suffolk Police to the inquiry and which was adverse to the interests of Heavypack and GB was that Belgian registered and Belgian licensed vehicles were being kept and used exclusively in Great Britain and that Mr Gary Banham was the de facto user of those vehicles.

The First Defendant unhesitatingly accepted the thrust of the first point made by the Police. At paragraph 59 of his decision he said this:-

“59 …… it is somewhat surprising that the central issue to the Police’s objection, the use, and the keeping of, Belgian registered and Belgian licensed vehicles exclusively in Great Britain, is not challenged by Gareth Banham. There is a casual reference to the vehicles visiting Belgium for maintenance and annual testing, but otherwise not a scintilla of evidence has been produced to suggest that Romantiek vehicles engaged in international haulage activities”

The First Defendant dealt with the second issue raised by the Police at paragraphs 76 and 77 of his decision. He did not say so expressly but he came close to accepting that the Claimant was being used as front for the activities of Gary Banham. What the First Defendant did say (at paragraph 76) was that the division between the various “Banham owned” undertakings was so obscure that he was entitled to treat matters such as Gary Banham’s actual employment with “some circumspection.”

Essentially the findings made by the First Defendant put the Claimant, GB, Mr Gary Banham and Heavypack in a very poor light. I have no doubt that he considered each of GB and his son to be rogues.

GB and Heavypack were entitled to appeal against the decisions made by the First Defendant. By notice dated 25 September 2003 they both exercised that right of appeal. In the interim, however, the First Defendant had engaged in some of the activities which are central to the issues in these proceedings.

On 11 September 2003 the First Defendant sent an email to the Second Defendant. It reads as follows:-

“Dear Peter,

I intend to shut off the supply of haulage work to Romantiek by challenging the good repute of those who have been providing Banham with containers to transport the length and breath of the country. I am attaching the draft of a letter I would like you to write.

Within the bundle of evidence submitted by Suffolk Police for the PI there are interviews with staff of companies who have provided these loads.

One is certainly Securicor. The other is Medite. It will be necessary to carefully select the appropriate company within the Securicor Group. It is probably Securicor Omega Container Transport with an operating centre at Felixstowe, where Medite is also based.

What I will do, is to allow the news of my decision to filter down to the Felixstowe fraternity, before sending letters to these particular operators. For that reason, they should go out during the week commencing 29 September 2003.

I realise I could call them to a PI. That would though be a long slow process to achieve what can be done legitimately by correspondence. It is my calculation that companies such as Securicor are most likely to act swiftly to disengage with Banham should I offer them the opportunity of dealing with the matter by way of correspondence rather than creating adverse publicity with the call to PI on repute.

Perhaps we can discuss the final version before I depart next Tuesday”

As the email indicated there was attached a draft of the proposed letter. It was in the following terms:-

“The Traffic Commissioner has recently conducted a Public Inquiry to determine, inter alia, whether Heavypack Haulage Limited and its director, Garith Albert Banham continue to meet the requirement to be of good repute. In conducting this exercise the Commissioner was examining, in particular, the activities of Garith Banham’s company Romantiek BVBA, conducted under the authority of an operators licence issued in Belgium. I am enclosing a copy of the Commissioner’s decision, drawing to your attention his findings at paragraph 70 of that document.

During the course of an investigation into Romantiek’s operations, Suffolk Police conducted interviews with members of your staff, which disclosed that you have employed Romantiek BVBA as a sub-contract haulier for a considerable period of time.

As the holder of a standard national/international operator’s licence your company is required at all times to be of good repute. The Traffic Commissioner therefore invites you to make written representations within 21 days of this letter why he should not give a direction under S.27(1)A of the 1995 Act that Securicor/Medite/ no longer meets the requirement of good repute in that you have given material assistance to an illegal operation. You may alternatively request these matters be determined at a Public Inquiry.

On 18 September 2003 the Second Defendant wrote letters to Securicor and Medite in the terms which had been sent in draft to him by the First Defendant. He also enclosed a copy of the decision of the First Defendant consequent upon the public inquiry and, as is obvious from the terms of the letter, particular attention was drawn to paragraph 70 of the First Defendant’s decision. That paragraph reads:-

“The regular and continuous nature of the domestic haulage activities carried out within the United Kingdom by the Romantiek vehicles is in breach of Article 1 of Regulation 3118/93, and is therefore unlawful.”

The email sent by the First Defendant to the Second Defendant had suggested that the letters should be sent to Securicor and Medite during the week commencing 29 September 2003. As is clear from the evidence they were in fact sent on or about 18 September 2003. The probability is that they were sent earlier than the First Defendant had suggested for the reasons set out in the Second Defendant’s witness statement namely that he was due to take annual leave from 19 September 2003 for a period of three weeks.

The letters provoked immediate responses. On 23 September 2003 an employee of Medite telephoned the office of the Traffic Commissioner. The caller indicated that Medite had been “upset” to receive the letter. On 1 October 2003 solicitors acting on behalf of Medite wrote to the Second Defendant seeking clarification of his letter. On 2 October 2003 a senior employee of Securicor (Mr. Bowcock) sent a detailed letter to the Second Defendant which indicated that Securicor had taken “immediate steps to ceasetrading with any individual or organisation referred to in TrafficCommissioner’s judgment” and he indicated that Securicor would not use the services of those persons or organisations in the future.

On 2 October 2003 Medite’s solicitors wrote to JR seeking clarification of the issues raised in the decision of the First Defendant. On 14 October 2003 they wrote to the Second Defendant making full representations about the letter of 18 September 2003. In their letter, inter alia, they indicated that Medite had taken a decision to withdraw all business from “Mendlesham Group Haulage” with immediate effect and that Medite had no intention of dealing with GB in the future.

It is also to be noted that on 3 October 2003 JR wrote to the Second Defendant on behalf of GB and the Claimant. In that letter he alleged that the letter of 18 September 2003 to Medite constituted an abuse of the First Defendant’s powers. He went on to assert that the recipients of the letters had ceased trading with GB and that “huge financial losses” had resulted.

By letter received by the First Defendant on 21 October 2003 a group describing themselves as “a group of very frustrated East Anglian hauliers” wrote to express “an utter disbelief that the company known as HeavypackHaulage, Romantiek or whatever the Banham family liked to be known as seem to be still continuing to trade having lost both their English and Belgian good repute…..”.

On that same day the First Defendant asked the Second Defendant to copy the letter referred to in the preceding paragraph to the Police and the Vehicle and Operator Services Agency. This agency, hereinafter referred to as VOSA, is the enforcement arm of the Third Defendant. The Second Defendant was also asked to inquire whether any action might be taken by those agencies against “the Banhamsarising from the findings …… in my recent decision”.

On 21 November 2003 the Transport Tribunal gave notice that the appeal by Heavypack and GB would be heard on 17 December 2003. The notice was served upon JR and the First Defendant.

On 4 December 2003 the First Defendant received an anonymous letter to the effect that the Claimant was still operating and was trading with Securicor and/or a firm called DHL and Searle.

On 17 December 2003 the appeal of Heavypack and GB was heard in the Transport Tribunal. Mr Timothy Nesbitt of Counsel appeared for the Appellants and Ms Alice Mayhew of counsel appeared for Suffolk Police. The First Defendant was not represented in any formal sense but the person who had acted as the clerk at the public inquiry conducted by the First Defendant attended the appeal to observe. The person in question was a Mr Savage and following the hearing on 17 December 2003 he reported to the Second Defendant that “things had not gone well”. By that it is common ground that he meant that he expected that the Appellants would be successful, at least to some extent, in their appeal.

On the day after the appeal was heard the First Defendant sent an email to the Second Defendant asking him to write to Securicor, enclosing a copy of the anonymous letter, and asking for their comments. He also requested that the Second Defendant should write to the other parties mentioned in the anonymous letter and that he should enclose a copy of his decision following the public inquiry. On 24 December 2003 the Second Defendant emailed the First Defendant as follows:-

“Dear Mr Simms

On reflection and with respect, I do have serious reservations about pursuing information given anonymously at this time and given the statements by Carl Bowcock on behalf of Securicor Omega which I feel put into doubt the legitimacy of the anon information.

Carl Bowcock said in his letter of 2^nd October ‘…….. we took immediate steps to cease trading with any individual or organisation referred to in the Traffic Commissioner’s judgement and we will not be using their services in the future.’ If one accepts that Securicor is reputable, should we really cast doubt upon Bowcock’s statement on the basis of an anonymous letter which on balance seems likely to offer dubious allegations?

The anonymous letter appears to suggest a link between Securicor and DHL but I can find no evidence through the Companies Register of any direct connection. DHL who however, have an operating centre in the area at Martlesham with authorisation there for 3 vehicles and 1 trailer. AM Searle Dock Shunting Services Limited is assumed to be the other entity referred to. That company is authorised for 20 vehicles and 30 trailers with an operating centre at Felixstowe.

May I suggest that any pursuit of these operators (or any others that may have made use of Romantiek) either directly by letter or through the VI IO, is delayed until the appeal decision is known. If you conclude that you do wish at this time to write to DHL and Searle, I would suggest that it is in terms of only seeking observations in regard to your findings rather than immediately suggesting doubts about good repute. Perhaps we can discuss.”

Christmas intervened. However on 29 December 2003 the First Defendant replied:-

“Dear Peter,

I am somewhat surprised you raised this matter having had my clear instructions of how I wish you to proceed.

This is the second anonymous letter received here since the licence was revoked. The theme of both letters is the continuing appearance of laden Romantiek vehicles on the highway, despite my finding that the operation is unlawful. It is quite obvious that somebody is providing Banham with loads to carry.

My written decision clearly states that I wish Mr Banham to be put out of business. That is my stated objective.

Since I have no direct jurisdiction over the Belgian licence held by Romantiek, my only course is to pursue any ETA licence operator who is providing a means by which these unlawful activities continue to flourish.

My choice of language, in the letter to Securicor, was particularly careful, in that I invited their comments. Nothing more.

I would be most grateful for an early attention to these matters.”

The Second Defendant replied promptly. He said:-

“Dear Mr Simms

My apologies but I do have reservations and I felt it right to express them. However, in accordance with your instructions I have today written to Mr Bowcock and to DHL and Searle.”

The letter to Searle was in the following terms:-

“In July and August this year the Traffic Commissioner conducted a Public Inquiry to determine, inter alia, whether Heavypack Haulage Limited and its director, Mr Gareth Albert Banham, continued to meet the requirement to be of good repute. In conducting this exercise the Commissioner was examining, in particular, the activities of Garith Albert Banham’s company, Romantiek BVBA, conducted under the authority of the operators licence issued in Belgium. I enclose a copy of the Traffic Commissioner’s decision and draw to your particular attention paragraph 70 of the document. I also enclose a copy of an anonymous letter which suggests that your company may sub-contract work to Romantiek BVBA, which company’s activities in the United Kingdom the Commissioner has deemed to be unlawful.

As the holder of a standard operator’s license, your company is required at all times to be of good repute. In these circumstances the Traffic Commissioner would be grateful for your comments”

The letter to DHL was in identical terms. The letter to Securicor simply enclosed the anonymous letter and invited comments.

On 6 January 2004 Mr Bowcock of Securicor telephoned the Second Defendant to assure him that no work had been given to the Claimant and none would be. Mr Bowcock also confirmed that Securicor and DHL, for practical purposes, were the same entity.

On 14 January 2004 Searle replied to the Second Defendant. The letter indicated, unequivocally, that Searle would cease to trade with the Mendlesham Group from 1 February 2004.

On 26 January 2004 the Transport Tribunal published its decision on the Appeal of Heavypack and GB. The appeal against revocation of licence and the appeal against disqualification were allowed. The appeal against suspension of licence was dismissed and it was ordered that the suspension of the licence should take effect from midnight on 28 February 2004. The appeal decision did not address, expressly, the issue of whether the variation to the licence should be permitted. Although there followed correspondence about this issue, no useful purpose would be served by describing that correspondence in this judgment.

Just as the First Defendant gave detailed reasons for his decision following the public inquiry so the Transport Tribunal gave detailed reasons for allowing the appeals. Fortunately, it is unnecessary for me to delve into the reasoning of the Transport Tribunal following the appeal. That is because Mr Phillips QC, throughout his presentation of this case before me, has accepted that the haulage activities undertaken by the Claimant for Securicor, Medite and Searle were not lawful cabotage operations. He invites me to accept that GB believed that the Claimant was undertaking lawful operations but, to repeat, he accepts that the pattern of haulage activities described above was not in fact lawful.

Notwithstanding this concession which was properly and inevitably made in the light of the decision of the Court of Appeal in Romantiek BVBA and others v VOSA [2008] EWCA 534 it seems to me to be desirable that I set out in some detail relevant provisions relating to the licensing of haulage operations both domestically and within the European Community, provisions relating to cabotage and extracts from such guidance as has been brought into existence about what constitutes cabotage.

Section 3 of the Public Passenger Vehicles Act 1981 provides that Great Britain shall be divided into a number of traffic areas. One such area is the Eastern Traffic Area. Section 4 provides for the appointment of a Commissioner for each traffic area.

Section 1 of the Goods Vehicles (Licensing of Operators) Act 1995 provides that the Traffic Commissioner for any traffic area shall exercise various functions conferred upon him by the Act. Section 2 provides that no person shall use a goods vehicle on a road for the carriage of goods for hire or reward or for or in connection with any trade or business carried on by him (subject to exceptions) except under licence issued under the Act. Such a licence is referred to as an operator’s licence. A person who needs to be licensed for haulage activities commits a criminal offence if he uses a vehicle for such purposes without a licence. Section 3 of the Act provides that a licence may be a standard licence or a restricted licence.

Applications for operator’s licences are made to the Traffic Commissioner for each area in which, if the licence is issued, the Applicant will have an operating centre or operating centres (see section 8). Section 13 provides the statutory criteria which are to be applied when determining an application for an operator’s licence. The requirements of sub-section 3 must be satisfied (amongst others) and they are:-

“(3)

For the requirements of this subsection to be satisfied the traffic commissioner must be satisfied that the applicant fulfils the following requirements, namely –

(a)

that he is of good repute,

(b)

that he is of the appropriate financial standing, and

(c)

that he is professionally competent; …”

Sections 26 and 27 contain provisions relating to the revocation suspension or curtailment of operator’s licences. In the case of an operator’s licence which is also a standard licence section 27 provides:-

“(1)

The traffic commissioner by whom a standard licence was issued shall direct that it be revoked if at any time it appears to him that the licence-holder is no longer –

(a)

of good repute,

(b)

of the appropriate financial standing, or

(c)

professionally competent;…”

Section 28 confers powers of disqualification upon the traffic commissioner for any area. He has power to disqualify a person whose operator’s licence has been revoked; he also has power to disqualify the director of any company whose operator’s licence has been revoked.

The provisions contained within the 1995 Act are wholly consistent with Council Directive 96/26/EC (29 April 1996). I need not quote from that Directive for that reason.

It is common ground that a traffic commissioner exercises his power to grant licences to operators which are based within his area. If he chooses to exercise his power to disqualify, however, he has power to disqualify a person from holding a licence within any traffic area (see section 27(3)).

I next turn to Community Council Regulation (EEC) 881/92. It is first to be observed that the Regulation is intended to be applied to the international carriage of goods by road for hire or reward for journeys carried out within the territory of the Community (Article 1). For the purposes of the Regulation the phrase “international carriage” is defined to mean:-

“- a journey undertaken by a vehicle the point of departure and the point of arrival of which are in two different Member States, with or without transit though one or more Member States or non-member countries;

-

a journey undertaken by a vehicle from a Member State to a non-member country or vice-versa, with or without transit through one or more Member States or non-member countries;

-

a journey undertaken by a vehicle between non-member countries, with transit through the territory of one or more Member States;

-

an unladen journey in conjunction with such carriage” (see Article 2)

Article 3 provides:-

“1.

International carriage shall be carried out subject to Community authorisation in conjunction with a driver attestation if the driver is a national of a non-member country.

2.

Community authorisation shall be issued by a Member State, in accordance with Articles 5 and 7, to any haulier carrying goods by road for hire or reward who:

- is established in a Member State, ….. in accordance with the legislation of that Member State,

- is entitled in that Member State, in accordance with the legislation of the Community and of that State concerning admission to the occupation of road haulage operator, to carry out the international carriage of goods by road”

Article 11 provides that each Member State shall give other Member States mutual assistance in ensuring the application and monitoring of the Regulation and also provides that the competent authorities of a Member State which are aware of an infringement of the Regulation attributable to a haulier from another Member State shall inform the competent authorities of that Member State and ask those authorities, if appropriate, to impose sanctions in accordance with the Regulation.

Community Council Regulation (EEC) 3118/93 lays down the conditions under which non-resident carriers may operate national road haulage services within a Member State. Article 1 provides:-

“Any road haulage carrier for hire or reward who is a holder of the Community authorisation provided for in Regulation (EEC) No.881/92 and whose driver, if he is a national of a non-member country, holds a driver attestation in accordance with the conditions laid down in the said Regulation, shall be entitled under the conditions laid down in this Regulation, to operate on a temporary basis national road haulage services for hire or reward in another Member State, hereinafter referred to respectively as “cabotage” and as the “host Member State” without having a registered office or other establishment therein.”

Article 2 made provision for cabotage quotas in the period from 1 January 1994 to 30 June 1998 but, from July 1998:-

“any non-resident carrier meeting the conditions laid down in Article 1 shall be entitled to operate, on temporary basis and without quantitative restrictions, national road haulage services in another Member States without having a registered office or establishment in that State.”(Article 12)

Article 8 contains provisions designed to ensure that Member States assist each other in enforcing the Regulation.

The Goods Vehicle (Community Authorisations) Regulations 1992 were made to give effect to Council Regulation (EEC) 881/92. Regulation 7 makes it a criminal offence for a person to use a vehicle in the United Kingdom under a Community authorisation if he fails to comply with any of the conditions governing the use of that authorisation.

On 4 January 2002 the Goods Vehicles (Enforcement Powers) Regulations 2001 came into force. Regulation 3 authorises the detention of a vehicle which is being or had been used on a road in contravention of section 2 of the 1995 Act.

In 2005 the European Commission issued what is described as an Interpretive Communication on the temporary nature of road cabotage in the movement of freight (2005/C25/02). As is obvious this interpretive communication post-dates the relevant events in this case. It is of some importance, however, since at paragraph 2.2.3 it records that on 1 December 2002 the United Kingdom adopted an interpretation of the concept of ‘temporary’ stipulating that the haulier must be able to prove that the vehicle had been leaving the country at least once a month. In fact, it seems to me this summary is misleading. As I understand it the approach taken by the Department of Transport was two-fold. It specified cabotage operations should not be permanent and/or they should not be frequent, regular or continuous. It also specified that such operations should involve the vehicle in question leaving the UK at least once per month; and that they should be entirely ad hoc, casual and circumstantial and at infrequent intervals. Certainly, that is a summary of the interpretation adopted by the Department as set out in a letter to a French Ministry dated 6 September 2002 (File 3 page 293); and advice which the Department of Transport gave again, in writing, on 30 August 2006 (see File 6 page 929).

The Document of 30 August 2006 also suggested that before it took action in respect of haulage activities which were illegal operations but which were alleged by the operator to be cabotage operations VOSA would normally write to foreign operators explaining the apparent problem and asking the alleged offender to cease or alter such operations. The foreign operator would be given a short period to respond and typically just a week.

There was a good deal of common ground about what constitutes this tort. The starting point and for most purposes the end point of any discussion about its ambit is the decision of the House of Lords in Three Rivers District Council and Others v Bank of England (No.3) [2003] 2AC 1. As will become clear, however, the speeches in Three Rivers do not deal expressly with a point which arises in acute form in this case. Accordingly, it is necessary to ascertain the principles upon their Lordships proceeded before seeking to resolve the point (apparently unresolved) which arises in this case.

Between pages 190 and 196 Lord Steyn set out his views on the ingredients of the tort. At page 190 he said this:-

“The tort of misfeasance in public office is an exception to ‘the general rule that, if conduct is presumptively unlawful, a good motive will not exonerate the Defendant, and that, if conduct is lawful apart from motive, a bad motive will not make him liable’ ……”..

the rational of the tort is that in a legal system based on the rule of law executive or administrative power ‘may be exercised only for the public good’ and not for ulterior and improper purposes:”

From page 191 onwards, Lord Steyn identified the ingredients of the tort. Some of the ingredients are wholly uncontroversial. They are that the Defendant must be a public officer and that he must be acting in exercise of public functions. More controversial was the necessary state of mind of the Defendant. In relation to this aspect Lord Steyn had this to say:-

“The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful..... (see page 191 E)

The present case is not one of targeted malice. If the action in tort is maintainable it must be in the second form of the tort. It is therefore necessary to consider the distinctive features of this form of the tort…….

The basis for the action lies in the Defendant taking a decision in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals. It is not every act beyond the powers vesting in a public officer which will ground the tort. The alternative form of liability requires an element of bad faith. (see page 192C and D)

.........it can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground a tort in its second form. (see page 192G).

……. a plaintiff must establish not only that the Defendant acted in the knowledge that the act was beyond his powers but also in the knowledge that his act would probably injure a plaintiff or person of a class which the plaintiff was a member. (see page 196A)”

Finally, in relation to the ingredients of the tort identified by Lord Steyn, it should be noted that he considered that causation was an essential element of the cause of action and that causation in any case was a question of fact.

At page 228 B to D Lord Hutton said:

“I agree with the opinion of Clarke J [the Judge at first instance] that the tort can be constituted by an omission by a public officer as well as by acts on his part…… but whether the public officer is sued in respect of an act or omission, it must be a deliberate one involving an actual decision and liability will not arise from injury suffered by mere inadvertence or oversight. I also agree with the opinion of Clarke J.... that it is sufficient for the plaintiff to prove that the public officer foresaw that his action would probably injure the plaintiff; to require foresight of certainty of harm would be unrealistic and, being very difficult to prove, would give inadequate protection against abuse of power.

I further consider that if the public officer knows that his unlawful conduct will probably injure another person or is reckless as to that consequence, the plaintiff does not need to show, before liability can arise, some other link or relationship between him and the officer.”

In his speech Lord Hobhouse also dealt with the issue of whether omissions as well as acts could give rise liability for misfeasance in public office. He said:-

“I would answer this question by saying that the position is the same as in the law of judicial review. If there is an actual decision to act or not to act, the decision is amenable to judicial review and capable of providing the basis for the commission of the tort. If there is a legal duty to act and the decision not to act amounts to an unlawful breach of that legal duty, the omission can amount to misfeasance for the purposes of the tort: ……. What is not covered is a mere failure, oversight or accident. Neglect, unless there is relevant duty of care, does not suffice and the applicable tort will then be negligence not misfeasance and different criteria will apply……….

The relevant act (or omission, in the sense described) must be unlawful. This may arise from a straight forward breach of the relevant statutory provision. (see page 230C to E).

On the remainder of page 230 and into page 231 Lord Hobhouse dealt with further aspects of the tort. He said:-

“The official concerned must be shown not to have had an honest belief that he was acting lawfully; this is sometimes referred to as not having acted in good faith….. Another way of putting it is that he must be shown either to have known that he was acting unlawfully or to have wilfully disregarded the risks that his act was unlawful. This requirement is therefore one which applies to the state of mind of the official concerning the lawfulness of his act and covers both a conscious and a subjectively reckless state of mind, either of which could be described as bad faith or dishonest.

The next requirement also relates to the official’s state of mind but with regard to the effect of his act upon other people. It has three limbs which are alternative and any one of which suffices.

First, there is what has been called “targeted malice”. Here the official does the act intentionally for the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable……

Secondly, there is what is sometimes called “untargeted malice”. Here the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge is an actual awareness but is not the knowledge of an existing fact or an inevitable certainty. It relates to a result which has yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences.

Thirdly, there is reckless untargeted malice. The official does the act intentionally being aware that it risks directly causing loss to the plaintiff or an identifiable class to which the plaintiff belongs and the official wilfully disregards that risk. What the official is here aware of is that there is a risk of loss involving the intended act. His recklessness arises because he chooses wilfully to disregard that risk.”

Finally, I turn to the speech of Lord Millett. At page 235 he said:-

“The tort is an intentional tort which can be committed only by a public official. From this two things follow. First, the tort cannot be committed negligently or inadvertently. Secondly, the core concept is the abuse of power. This in turn involves other concepts, such as dishonesty, bad faith, and improper purpose. These expressions are often used interchangeably; in some contexts one will be more appropriate, in other contexts another. They are all subjective states of mind.

It is important to bear in mind that excess of power is not the same as abuse of power. Nor is breach of duty the same as abuse of power.

Even a deliberate excess of power is not necessarily an abuse of power. Just as a deliberate breach of trust is not dishonest if it is committed by the trustee in good faith and in the honest belief that it is for the benefit of those in whose interest he is bound to act, so a conscious excess of official power is not necessarily dishonest. The analogy is closer than may appear because many of the old cases emphasise that the tort is concerned with the abuse of a power granted for the benefit of and therefore held in trust for the general public.

The tort is generally regarded as having two limbs. The first limb traditionally described as “targeted malice” covers the case where the official acts with intent to harm the plaintiff or a class of which the plaintiff is a member. The second is said to cover the case where the official acts without such intention in the knowledge that his conduct will harm the plaintiff or such a class. I do not agree with this formulation. In my view the two limbs are merely different ways in which the necessary element of intention is established. In the first limb it is established by evidence; in the second by inference.

The rationale underlying the first limb is straightforward. Every power granted to a public official is granted for a public purpose. For him to exercise it for his own private purposes, whether out of spite, malice, revenge or merely self advancement, is an abuse of the power. It is immaterial in such a case whether the official exceeds his powers or acts according to the letter of the power. His deliberate use of the power of his office to injure the plaintiff takes his conduct outside the power, constitutes an abuse of the power, and satisfies any possible requirements of proximity and causation …………”

Notwithstanding the wide-ranging nature of the speeches in Three Rivers one issue, as it seems to me, is left unresolved, and as I have said it arises in acute form in this case. The issue is whether the alleged victim suffers damage for the purposes of the tort if the act or omission about which complaint is made has no greater effect than preventing the alleged victim from engaging in trade unlawfully and therefore from earning profits from illegal activities.

In my judgment, this issue is capable of being resolved in one of two ways. First, the fact that the act or omission about which complaint is made is undertaken for the purpose of preventing illegality may and in many cases will conclusively determine whether or not the public official has acted in bad faith – on any view an essential element of both limbs of the tort. In my judgment a court will usually be very slow to hold that a public official has acted in bad faith if the motivation for the act or omission about which complaint is made is the prevention of activity which is unlawful. However, even if bad faith on the part of the public official is made out on the facts of a particular case he will still be entitled to pray in aid the principle that a claimant should not be entitled to recover damages for losses which arise exclusively from the fact that his ability to continue to trade illegally has been prevented by the act or omission of the public official. Although the decision of the Court of Appeal in Hewison v Meridian Shipping Services PTE Ltd and others [2003] ICR 766 is dealing with a very different factual context it seems to me that the principles laid down in that case are equally applicable to a case such as the instant one.

The relevant principles are encapsulated in the following extracts from the judgment of Clarke LJ (as he then was).

“27.

The correct principle seems to me to be substantially the same as that identified by Beldam LJ [in Clunis v Camden and Islington Health Authority [1998] QB 978] as being applicable to cases in which the maxim turpi causa non oritur actio applies. It is common ground that that maxim does not itself apply here because it is correctly agreed that there is no principle of public policy which prevents the Claimant from pursuing his cause of action for damages for negligence or breach of duty against the defendants. The question is not whether he can recover at all but whether he is debarred from recovering part of his alleged loss.

28.

However, as I see it, the principle is closely related. It is common ground there are cases in which public policy will prevent a claimant from recovering the whole of the damages which, but for the rule of public policy he would otherwise have recovered. The principle can perhaps be stated as a variation of the maxim so that it reads ex turpi causa non oritur damnum, where the damnum is the loss which would have been recovered but for the relevant illegal or immoral act. A classic example is the principle that a person who makes his living from burglary cannot have damages assessed on the basis of what he would have earned from burglary but for the defendant’s negligence.

To my mind the authorities support that approach. They seem to me to support the proposition that where a claimant has to rely upon his or her own unlawful act in order to establish the whole or part of his or her claim, the claim will fail either wholly or in part……”

Later in his judgment Clarke LJ expressly followed the proposition laid down by Hobhouse LJ in Hunter v Butler [1996] RTR 396 to the following effect:-

“If a plaintiff comes to court and asserts as part of her case that she would have committed criminal acts and bases her claim on such an assertion she cannot recover in a Court of law on that basis”.

There is one further aspect relating to this tort which I should mention briefly. In Weir and others v The Secretary of State for Transport and others [2005] EWCA 2192 Lindsay J assumed, without deciding the point, that if targeted malice was alleged i.e. the first limb of the tort, it sufficed that the specific intent to injure was a purpose of the defendant as opposed to being the purpose or the predominant purpose. In this case I shall proceed upon the same assumption.

I can deal with the ingredients of this tort quite shortly. I adopt, gratefully, as my starting point the formulation set out in paragraph 41 of the Claimant’s Skeleton Argument. I quote:-

“Although the tort of unlawful interference with trade has been described as being a tort of ‘uncertain ambit’, the ingredients that need to be shown to exist for that tort to be proved are summarised in Clark & Lindsell (at 25-88) as being–

(i)

that the Defendant used unlawful means;

(ii)

with the object and effect of causing damage to another.

In Douglas v Hello (no.3) [2006] QB 2125 Lord Phillips of Worthmaltravers MR cited this formulation with apparent approval before going on to summarise the position in the following terms (at page 193):

‘Where conspirators resort, or indeed an individual resorts, to unlawful conduct with the object of causing the claimant economic harm, the law holds the conduct tortious, even if the harm is not the predominant object or purpose of the exercise. The tort will be made out even though the harm may be the means to some other end.”

In their written closing submissions Mr Phillips QC and Mr. Nesbitt submit that the acts or omissions which might qualify for inclusion within the phrase “unlawful means” are wide-ranging and would certainly include acts or omissions which are unlawful in the sense used in judicial review proceedings.

In relation to this tort Counsel for the Claimant asked me to determine the following issues:-

Mr Tam QC did not seek to suggest that any of the submissions made on behalf of the Claimant about the law as it relates to this tort were incorrect and I proceed to consider this case on the basis that the Claimant’s formulation of the law is correct.

I should add, of course, that the issue identified in paragraph 76 above and discussed in paragraph 77 arises in precisely the same form in relation to the tort of unlawful interference with trade as it does in relation to misfeasance in public office. The conclusions I expressed in paragraph 77 are just as applicable in relation to the tort of unlawful interference with the trade.

It is common ground that this head of claim adds nothing. The Claimant will succeed in establishing misfeasance in public office and/or unlawful interference with trade or his claim will fail. Accordingly I say no more about this pleaded head of claim.

The Claimant’s primary case is that the sending of the letters of 18 September 2003 to Securicor and Medite and the sending of the letter of 29 December 2003 to Searle constituted misfeasance in public office. It is alleged that both the Second Defendant (as the sender of the letters) and the First Defendant (as the person who instigated the sending of the letters) committed the tort.

I deal first with the position of the First Defendant and I start with his motivation for instructing the Second Defendant to send the letters in question. In my judgment the First Defendant’s motivation was clear. He wished to prevent the Claimant from engaging in what he regarded as unlawful trading activity with the three companies to which the letters were sent. In his decision following the public inquiry the Claimant made it crystal clear that he regarded the Claimant’s activities in Great Britain as unlawful. I have set out the crucial findings in paragraphs 33 and 34 above. Prior to the public inquiry the First Defendant had reported the Claimant’s activities to the Belgian licensing authorities. He was quite entitled to do so and probably obliged to do so. I reject any notion that this was the start of an illegitimate campaign against the Claimant or the continuation of a campaign against the Banham father and son. Rightly or wrongly but, in my judgment, genuinely, the First Defendant took the view that the Belgian authorities had failed to grasp the nature and pattern of trade which the Claimant was undertaking in Great Britain. I have no doubt that the First Defendant’s decision to widen the scope of the public inquiry so as to consider the good repute of Heavypack and GB in relation to their connection with the Claimant was, at least in part, brought about because the First Defendant was frustrated by the outcome of his report about the Claimant’s conduct to the Belgian licensing authorities.

Neither the Police nor VOSA had, themselves, taken any action against the Claimant or GB. The Police, of course, were wholly familiar with the activities of the Claimant – it was the Police, in the main, who provided information to the First Defendant at the public inquiry.

Faced with inaction on the part of the Belgian licensing authority, the Police and VOSA the First Defendant decided to take action to put an end to the Claimant’s activities which he perceived to be illegal.

In the First Defendant’s email of 29 December 2003 to the Second Defendant he said, expressly, that it was his stated objective to put the Claimant out of business. Having heard the First Defendant give evidence I do not think that he meant that in its true literal sense. In my judgment the First Defendant’s intention or objective was not to prevent lawful trade on the part of the Claimant but, rather, to prevent his illegal trade, as the First Defendant saw it, with Securicor, Medite and Searle. It may very well be that the First Defendant believed that the Claimant would not, in point of fact, engage in trade with those three organisations in Great Britain which was lawful. However, to repeat, I accept his evidence to the effect that his objective and intention was no more and no less than to prevent illegal trading.

I turn next to the issue of whether or not the First Defendant was legally entitled to cause letters to be sent to Securicor, Medite and Searle to point out to them that their good repute might be called into question should they continue to trade with an organisation which was itself trading illegally. Subject to the point which arises in relation to his motivation for so doing, I am quite satisfied that he was so entitled. Section 27 of the 1995 Act makes it clear that the First Defendant was entitled to keep under review the issue of the good repute of an organisation to which he has granted a standard operator’s licence. Trading with an organisation which is trading illegally is clearly conduct which is capable of affecting the good repute of the holder of the operator’s licence. In a sense, when the First Defendant instructed the Second Defendant that letters should be written to Securicor Medite and Searle drawing to their attention the alleged illegal activities of the Claimant and questioning their good repute he was doing nothing which was in substance different from that which he did by investigating the good repute of Heavypack by reference to its connection with the Claimant. It has not been suggested in these proceedings that the First Defendant lacked the power to investigate that relationship at the public inquiry – at least in the sense of suggesting that by so doing he committed a tort.

I am quite satisfied that the sending of the letters to Securicor Medite and Searle was lawful in the sense that the sending of such letters was within the power conferred upon the First Defendant by the 1995 Act. Did the sending of the letters become unlawful by reason of the First Defendant having an improper motive for acting as he did? Obviously, I use the phrase “improper motive” as that phrase is to be understood in the context of the tort of misfeasance in public office.

In my judgment it did not. I have identified the First Defendant’s motive above. I simply do not see how a motive can be categorised as improper or ulterior for the purposes of this tort and on the facts of this case when the motive is to prevent an organisation engaging in a course of trade which it cannot lawfully undertake. It is common ground that bad faith is a critical element of this tort. I simply do not see how a public official acts with bad faith when he engages in an action – in this case, instructs his subordinate to send letters – which is lawful as between the recipient of the letter and himself and which is aimed at preventing a course of trade between the recipient of the letter and a third party which the third party has no legal right to undertake.

An alternative way of expressing my view is that I do not consider that the First Defendant had the specific intent or motive of injuring or damaging the Claimant. In the context of this tort and in the context of the facts of this case I simply do not regard an intent or motive to prevent illegal conduct as being the same as an intent or motive to cause the party engaging in such conduct the economic loss which may flow from the disruption of his conduct.

In my judgment the Claimant has failed to establish a case of targeted malice as against the First Defendant. I am also of the view that the Claimant has failed to prove the so-called second limb of the tort. Mr Phillips QC accepts that it is necessary for the Claimant to prove that the sending of the letters was unlawful; that the First Defendant knew that or was reckless as to whether it was and that he also knew that or was reckless as to whether the writing of the letters would cause the Claimant damage. I have already held that the sending of the letters was lawful. The reason, to repeat, that the sending of the letters was lawful was that the First Defendant was entitled to keep under review the good repute of operators licensed by him and send appropriately worded letters to them if he intended to challenge their good repute.. If, as I have found, the sending of the letters was lawful there could be no question of the First Defendant being reckless as to whether, in fact, the letters were unlawful.

In the Skeleton Opening of Mr Phillips QC and Mr Nesbitt the suggestion is made that the sending of the relevant letters was unlawful in the sense that no reasonable public official in the position of the First Defendant would have instructed a subordinate to send such letters. In my judgment that submission cannot succeed. I have described, already, how the First Defendant had grown to realise that the Claimant was persistently and flagrantly breaking the law and yet, apparently, avoiding the consequences. Against that background I do not think that the reasonable public official in the First Defendant’s position would have regarded the sending of the letters in question as unreasonable. Rather, in my judgment, the view of the notional public official would have been that the sending of such letters was completely justified. In reaching that conclusion I am fortified by the unchallenged evidence in this case of the Senior Traffic Commissioner, Mr Phillip Brown. He has been the Senior Traffic Commissioner since March 2003. He was first appointed a Deputy Traffic Commissioner in August 1990 and became a full time Commissioner in May 2000. In his witness statement at paragraph 17 he says this:-

“Where vehicles operated by a company established in a European Country other than the UK are operating unlawfully without the appropriate licence or in breach of the rules on cabotage there are several steps that might be taken to address this.”

One of the steps then suggested by Mr Brown was the step which the First Defendant took in this case (see paragraph 20 of the witness statement). Mr Brown suggests that this form of action is appropriate when the illegal operation is flagrant – see paragraph 21. In my judgment the First Defendant was entitled to reach the conclusion that the Claimant’s activities were a flagrant breach of the prevailing law as it related to cabotage and, on the basis of Mr Brown’s evidence which, to repeat, was unchallenged, he adopted a method of preventing the illegal activity which is actually recommended by the Senior Traffic Commissioner.

I have also considered the submission that the First Defendant acted unlawfully by failing to afford to the Claimant the opportunity of regularising its operations before writing to its trading partners. I appreciate that there will be circumstances in which such a “warning shot across the bows” is entirely appropriate and there may be cases where a failure to give such a warning would render the action actually taken by a public official unlawful. This is not one of those cases. The plain fact is that the Claimant’s illegal operations had been continuing for a lengthy period of time. In the view of the First Defendant, which view was wholly justified, the Claimant was likely to continue in its chosen trading pattern even in the face of a warning to stop. The First Defendant was entitled to reach the conclusion that a warning letter would have no material effect upon the Claimant. All his dealings with the Claimant, Heavypack, GB Gary Banham and Powerfavour could, legitimately, lead him to that view.

In my judgment the Claimant has failed to establish the tort of misfeasance in public office as against the First Defendant.

If I am wrong in that conclusion it seems to me to be inescapable, nonetheless, that the Claimant is debarred from recovering damages for the tort by reason of the principles set out and discussed in Hewison above. In my judgment it is fanciful to think that the Claimant either could or would have traded with Securicor, Medite and Searle within Great Britain and in a manner which was consistent with the law in relation to cabotage. I appreciate that GB appears to assert the contrary in paragraph 31 of his witness statement. I have to say, however, that I simply do not accept that part of GB’s evidence. I have no doubt that if the Claimant had been able to conduct its operations in a way which was within the law in relation to cabotage and also profitable it would have begun to do so immediately following the publication of the First Defendant’s decision after the public inquiry. No evidence has been adduced in this case which begins to show that a profitable legal operation could have been sustained and I am not prepared to accept the unsubstantiated assertion of GB to that effect. Given the nature of these proceedings the credibility of the Claimant as a witness has not been crucial to the outcome. Rather, if anything, the focus has been upon the credibility of the First Defendant. In so far as the Claimant’s credibility was put in issue, however, I have considerable reservations about accepting his assertions. He was most unconvincing in his explanations of how vehicles formerly used by his son were put to use by the Claimant. As I have recorded earlier in this judgment he was forced to admit that vehicles were used in Great Britain which were registered and licensed in Belgium even though the Belgian licence in respect of those vehicles had been suspended.

I should say, finally, in relation to the lawfulness of the First Defendant’s actions that I have considered with care the fact that the Second Defendant was obviously uneasy about whether he should send the letter to Searle and to a lesser extent he was uneasy about sending the letters to Securicor and Medite. Having considered the Second Defendant’s evidence on this point, however, I am completely satisfied that his unease related to the timing of the letters. When the letters were sent to Securicor and Medite it was not known whether the Heavypack would appeal against the First Defendant’s decision. In late December 2003 Heavypack’s appeal was about to be determined and the Second Defendant felt it prudent to await the outcome of the appeal rather than send the letter to Searle while the result was unknown. In my judgment, to repeat, the Second Defendant’s unease stemmed from these timing issues rather than any belief on his part that the First Defendant was actually instructing him to act illegally.

I turn, briefly, to the position of the Second Defendant. I am completely satisfied that he did not act illegally. In the particular context of this case, it seems to me that a finding of liability against the Second Defendant would be completely unjustified. As a consequence of my findings he was not instructed to do anything unlawful by the First Defendant. In any event and independently of my findings about the First Defendant there is simply no evidence that the Second Defendant acted in bad faith. In my judgment that element must be proved against him and there is no basis for such a conclusion.

In the light of my conclusions about misfeasance in public office there can be no basis for finding that the First or Second Defendant committed the tort of unlawful interference with trade. The element of unlawfulness necessary to found that tort is simply not proved for the reasons I have explained. My answer to issue (i) set out in paragraph 87 above is no. No useful purpose would be served by any further discussion of the alleged tort.

I have reached the clear conclusion this claim fails. I find that the Claimant has failed to prove that the First or Second Defendant committed the torts of misfeasance in public office or unlawful interference with trade. In any event if such torts were committed they did not cause any recoverable economic loss to the Claimant.