Jasbir Singh

Cases referred to: 2019/054 Bridgestep Limited; (2009/041 Waterstone Motors t/a the Green Bus Service); 2010/29 David Finch Haulage; 2009/011 Katherine Oliver and H W Swan T Partners; Catch22Bus Limited & Philip Higgs v The Secretary of State for Transport (2019) EWCA Civ 1022)2012/071; 2014/4-41 C G Cargo Limited and Sandhu; Bradley Fold Travel & Peter Wright v Secretary of State for Transport (2010) EWCA Civ.695.

This is an appeal from the decision of the Traffic Commissioner for the South East and Metropolitan Traffic Area (“TC”) dated 11^th March 2022 when she revoked the operator’s licence of the Second Appellant (“R&J”) under s.26 of the Goods Vehicles (Licensing of Operators) Act 1995 (the 1995 Act”) and disqualified both Appellants under s.28 of the 1995 Act for a period of seven years with effect from 23.45 on 4^th July 2022. Darren Coot, the Second Appellant’s transport manager was issued with a strong written warning. That decision is not (and cannot) be the subject of an appeal.

The background to this appeal can be found in the appeal bundle and the written decisions of Deputy Traffic Commissioner Davies (“DTC”) dated 19^th October 2020 and the TC’s decision dated 11^th March 2022 and is as follows. The First Appellant (“Mr Singh”) has been involved in commercial road transport for a number of years. He was a director of SSP Haulage between 14^th June 2016 and 15^th October 2018. He was the sole director of Maximus Haulage between 2^nd April 2017 and 22^nd October 2019 when his cousin Kulwinder Singh Sandhu took over the business. On 5^th August 2018, Mr Singh took over the business of R&J from the then sole director of the company Jagit Paul Singh, although there was some overlap in directorships until 15^th October 2018.

R&J had been granted a standard national operator’s licence on 14^th August 2015 for six vehicles and six trailers. On 11^th June 2018, a DVSA maintenance investigation was carried out and was marked as “unsatisfactory” resulting in a “propose to revoke” letter being sent on 19^th September 2018. Mr Singh later denied that he had any knowledge of the DVSA investigation although after he had purchased the company and had become the sole director, the company requested a public inquiry in response to the “propose to revoke” letter. Then on 10^th October 2018, the transport manager was removed from the licence prompting a further “propose to revoke” letter being sent which was not responded to and as a result, the licence was revoked on 12^th November 2018.

R&J applied for a new licence on 29^th November 2018; Mr Singh was the nominated transport manager. The application was called to a public inquiry and was considered on 12^th March 2019. The decision letter can be summarised as follows:

Upon receipt of a certificate showing that Mr Singh had attended an appropriate CPC refresher course and following the nomination of Navdeep Singh Sandhu as a second transport manager, the interim licence authorising four vehicles was granted on 11^th June 2019.

On 28^th August 2019, Harry Kapoor completed a transport audit. It recorded inter alia that:

On 14^th November 2019, a joint traffic examiner and vehicle examiner investigation was carried out. When they arrived at Midland Quarry Products (“MQP”), one of the two operating centres recorded on R&J’s licence, vehicle registration AY66TMV, which was specified on the licence, was present with its driver. When asked, the driver stated that he was working for “Maximus” which prompted a check of the licence disc. The driver then declared that the vehicle previously belonged to R&J but that it now belonged to Maximus. The driver was told the purpose of the visit and his response was that his “boss” was en-route. Enquiries were made via MQP’s control room and a delivery note was produced which showed that the vehicle was being operated by R&J and that the driver was in fact Mr Singh. The vehicle was displaying a disc for Maximus Haulage, although behind it were two further in date discs, one for the revoked R&J licence and another for Leicester Haulage Ltd. It then transpired that R&J did not in fact have permission to use MQP as an operating centre.

On 21^st November 2019, vehicle KY12LZK was stopped. The driver stated initially that he was working for R&J although the vehicle was displaying a disc issued to Maximus Haulage. The driver then stated that he was working for Maximus and that both R&J and Maximus were the same operation and being run by the same person. The driver told the DVSA that he had been interviewed and inducted by Mr Singh who gave him his day to day instructions. It then became apparent that the vehicle had been removed from the Maximus licence on 10^th October 2019 and that on 22^nd October 2019, the day that Mr Singh ceased to be a director of Maximus, the vehicle was specified on the licence of SSP Haulage. No one could be contacted at SSP Haulage although a telephone call to Maximus elicited the response that the vehicle was being operated by SSP Haulage although the driver worked for Maximus.

There then followed follow-up visits to R&J on 25^th and 29^th November 2019 and the outcome of the investigation was marked as “unsatisfactory”:

Mr Navdeep Singh Sandhu resigned as the second transport manager with effect from 10^th February 2020. Mr Coot was then nominated as an external transport manager. He was also the transport manager for Maximus Haulage.

A second public inquiry was held on 27^th August 2020 and concluded on 9^th October 2020. DTC Davies heard from the vehicle examiners, Mr Singh, Mr Coot and Amrit P Singh, who was CPC qualified and Mr Singh’s cousin who assisted in communication because of Mr Singh’s difficulties in communicating in English. In her written decision dated 19^th October 2020, the DTC found that Mr Singh and Mr Sandhu as transport managers were “most detrimental to the proper management of this licence. Neither knew what the full rigours of compliance entailed. Neither were skilled enough, and neither knew just how incompetent they were. .. they did not have a clear understanding of their roles and responsibilities … Whilst they may have been trying to do their best, I have concluded that it was their incompetent best ..” The DTC was impressed with Mr Singh’s actions having received the call up letter. He appointed Mr Coot as transport manager and had relied upon his cousin to put systems in place which relied less on linguistic skills. However, Mr Singh’s management of R&J had been “most ineffective and troubling .. I remain to be satisfied that he can oversee this licence to the requisite degree required”. The DTC was concerned about the maintenance failings and that despite the passing of seven months between the first public inquiry and the DVSA investigation, systems and procedures had not significantly improved despite a second transport manager being appointed, Mr Singh having attended a refresher course, a systems audit having taken place which was not acted upon, the audit representing a warning that urgent prompt action was needed by Mr Singh to improve systems and management of the licence generally. It was unacceptable that drivers were not completing walk round checks properly and that tachograph errors were occurring. It was even more unacceptable these problems were not identified. There had been unlawful use of an operating centre. The level of default by Mr Singh was “very significant”. As a result, action had to be taken against the interim licence. The positives were the changes made, there were no road safety critical defects and no recent prohibitions and Mr Singh did not gain any commercial advantage. Mr Singh had accepted that he could not drive and manage his licence and that he should not act as transport manager. However, it was for him to supervise and manage the licence and the transport manager. In the circumstances, the DTC was prepared to grant a full licence to R&J with effect from 2^nd November 2000 and in doing so, allowed Mr Singh one last chance to prove that the company could be operated compliantly. The repute of the company and Mr Singh was tarnished. The DTC found breaches of ss.26(1)(b); (1)(c); (1)(ca); (1)(e); (1)(f) and (1)(h) and suspended the licence for seven days with effect from 24^th December 2020. The DTC accepted an undertaking to ensure all maintenance providers were added to the licencing system of the Central Licensing Office and she recorded a statement of intent made by Mr Singh that he would not undertake any driving responsibilities on this or any other licence whilst managing this licence. Mr Singh was reminded that this was his last opportunity to ensure that the licence was managed “to a standard of near perfection”. Anything less would result in a further public inquiry where his repute would be very much in question.

On 16^th November 2020, an application was lodged to increase the company’s vehicle authorisation from six vehicles and six trailers to eleven vehicles and eight trailers. The supporting bank statements did not show financial standing for the increased authorisation applied for and appeared to barely cover the existing authorisation. Updated bank statements were requested and whilst they demonstrated financial standing for the proposed increase, there were large financial transactions, including with Maximus Haulage which may have indicated more than arms-length trading. Moreover, some of the evidence heard in public inquiries before the TC concerning the licence of a company called Chief Haulage Limited and the licence application of L2L Haulage Limited pointed to them having been “fronts” for Mr Singh to operate more vehicles while R&J’s application for a full licence was ongoing. R&J, Mr Singh and Mr Coot were called to a public inquiry.

The public inquiry commenced on 12^th July 2021. Mr Singh was represented by Mr Mason, solicitor, and a Punjabi interpreter attended to assist Mr Singh. The TC described the hearing in this way: “Mr Singh gave evidence on his own behalf and through Mr Mason for nearly 2 hours on the financial records, invoicing, operating links with Maximus Haulage, driver agencies and Bluestar Haulage Limited. At the end of the session the evidence was at best confusing, with an overriding impression of reticence to answer direct questions ..”. The hearing was adjourned with Case Management Directions to be complied with prior to the reconvened hearing listed for 23^rd August 2021. The directions included the requirement for witness statements to deal with the specific areas of concern arising out of Mr Singh’s evidence along with documentary evidence and missing financial standing bank statements.

Some documentary evidence was produced prior to the hearing but Mr Mason had been unable to finalise Mr Singh’s witness statement. On 20^th August 2021, Mr Mason informed the Office of the Traffic Commissioner (“OTC”) that Mr Singh had told him that he was suffering from COVID symptoms. Mr Mason had advised Mr Singh to book a PCR test. Mr Singh did not provide a test result and as a result, a short adjournment was granted to 6^th September 2021. On 6^th September 2021, Mr Coot and Mr Mason attended the hearing. Mr Singh did not attend but told Mr Mason that he was not well enough even to attend the hearing remotely. A COVID test result was eventually provided dated 7^th September 2021. The TC suspended R&J’s licence with effect from 23.45 on 7^th September 2021 until the reconvened hearing or such earlier date as the TC agreed in writing once the required documentation set out in the TC’s directions of 12^th July 2021 had been lodged. She made it clear that the vehicles specified on the licence must not be used or specified on any other licence. Upon receipt of the documentation, the suspension was lifted on 23^rd September 2021 and a direction was made that no later than seven days prior to the reconvened hearing, Mr Singh was to lodge evidence that the vehicles had not been moved during the period of suspension.

On 27^th September 2021, Mr Coot notified the OTC that without his knowledge or consent (he had been on holiday), the vehicles had been operated during the period of suspension (a total of sixteen days). He had discovered this having printed out a Clockwatcher summary report on 23^rd September 2021. He spoke to Mr Singh and told him that there had been a breach of trust which required explanation. As a result of Mr Coot’s communication, a further direction was made that all digital data for the suspension period was to be sent to the DVSA by email “by return”. That direction was not complied with by Mr Singh and Mr Coot was unable to do so as in the meantime, Mr Singh had cancelled Mr Coot’s access to the Clockwatcher system. Mr Coot did however, forward the summary report that he had printed off on 23^rd September 2021.

The hearing was concluded on 5^th November 2021. It was accepted that financial standing could not be demonstrated even for the existing authorisation (although if this had been the sole issue, the TC would have granted a short period of grace). It was further accepted that Mr Singh had operated his vehicles during the suspension period and both Mr Singh and Mr Coot acknowledged that there remained deficiencies in the systems to ensure compliance with the rules regarding maintenance and drivers’ hours, tachographs and the Working Time Directive. Many issues remained to be determined.

In her written decision dated 11^th March 2022, the TC recorded that she did not find Mr Singh to be a credible or compelling witness and described his demeanour as guarded. He became unsettled when the TC asked for corroboration and/or details to support his evidence. She preferred the evidence of Mr Coot, who she considered to be an open and straightforward witness. Where there was a conflict between Mr Singh’s evidence and the documentation, the TC gave more weight to the documents.

The undisputed findings of fact made by the TC are as follows:

The TC concluded that Mr Singh’s default position was that anything that made him look non-compliant or untrustworthy was down to communication challenges and innocent mistakes. This was despite the assistance of an experienced Punjabi interpreter and during one hearing, assistance from his cousin. His evidence had been shown to change depending on the topic, particularly when the veracity of his evidence was tested. There were few positives. The fundamentals of drivers’ hours management were in place although blotted by the lack of control of agency drivers; prohibitions issued in April 2021 were followed up with a disciplinary meeting and a letter to drivers; laden roller brake tests and gate checks were being undertaken although the TC was unable to assess their effectiveness because of lack of documentation. Likewise, the retorque register was not produced. Mr Singh had demonstrated over a sustained period that he acts at will, not through any lack of communication skill, but out of his own self-interest. He had continued to put commercial efficacy first, regardless of any direction from a TC, a DTC, the OTC, the DVSA or the Transport Manager. The TC gave significant weight to:

The aggravating features were:

Mr Singh’s failure to heed the very stark warning from DTC Davies in October 2020 and to continue to conduct his businesses giving priority to commercial need over safety along with an absence of compliance and transparency made this a “terrible case”. The chronology was such that the starting point was “Severe” in terms of the Senior Traffic Commissioner’s Statutory Document 10 Annex 4. The few positives did not downgrade that category or dent the TC’s overriding disquiet about the “mendacious Mr Singh”. Mr Mason himself suggested a starting point of “Serious to Severe” and acknowledged that trust remained challenged. The TC did not trust Mr Singh to show due regard for the law or those who uphold it. The suggestion of stepping back from revocation, invoking instead an extended period of suspension followed by a significant and indefinite curtailment with a full-time transport manager in post was not persuasive. Mr Singh, “through his acts, omissions, equivocating and inconsistent evidence and illegal operation demonstrated to me that he is untrustworthy to the core. The evidence is overwhelming that the only thing Mr Singh can be trusted to do is to do as he pleases when it pleases him. This was R&J’s and Mr Singh’s third public inquiry. They were given the benefit of the doubt in 2019 and – just – in 2020 but no more. It would undermine the integrity of the operator licensing system if this licence continued after the 2021 hearings. The operator deserves to be put out of business to protect the hardworking legitimate industry. Loss of good repute and revocation are appropriate and proportionate where, as here, there is an “absence of any objective justification and excuse, there having been long term, sustained, repetitive deficiencies (2009/041 Waterstone Motors t/a the Green Bus Service).

As for disqualification, the TC considered the case law (2010/29 David Finch Haulage; 2009/011 Katherine Oliver and H W Swan T Partners; Catch22Bus Limited & Philip Higgs v The Secretary of State for Transport (2019) EWCA Civ 1022). The case law indicated that an order of disqualification was justified and required in cases where the operator could not be trusted to comply with the regulatory regime and when it was an appropriate order to uphold the objectives of the system and to ensure the protection of the public and fairness to other operators. Even if Mr Singh had not operated the R&J vehicles during the suspension period, the facts of the case (the previous revocation and the number of public inquiries) merited disqualification for a period of between two and three years. A message was necessary to protect road safety and fair competition and to make clear that operators could not make promises at a public inquiry and then revert to “previous errant ways”. The aggravating features had been set out. If operators become tempted to do the same as Mr Singh in the hope of not being found out, the regime would collapse with catastrophic consequences. The case required a significant period of disqualification. In 2014/4-41 C G Cargo Limited and Sandhu the Upper Tribunal drew attention to the suggested range of 5 to 10 years for conduct meriting the description “severe”. The aggravating features placed the case firmly in this category and 7 years was justified. The TC further determined that Mr Singh may seek to persuade family members or long-term contacts to help him evade the impact of this decision and accordingly, she determined to make an Order under s28(4) of the 1995 Act.

By a Notice of Appeal dated 8^th April 2022, both Appellants appealed. Whilst there were three grounds of appeal set out in the Notice, only one ground was advanced at the hearing of the appeal:

“The decisions of the Traffic Commissioner are, in all of the circumstances of the case, disproportionate”.

In advance of the hearing, Mr Davies filed a helpful skeleton argument for which we were grateful.

At the hearing of this appeal, Mr Singh attended without an interpreter. Mr Davies’ first point was that the TC’s decisions that both Appellants had lost their good repute and that R&J’s operator’s licence should be revoked were disproportionate in all of the circumstances. Mr Davies accepted that the TC had not found Mr Singh to be credible or compelling as a witness and that adverse findings had been made with regard to breaches of undertakings to keep vehicles and trailers in a fit and serviceable condition, to ensure that there was an effective driver defect reporting system and that the laws relating to driving, drivers’ hours and tachographs were observed and proper records kept and made available. Mr Davies further accepted that the TC had found that Mr Singh had committed a gross breach of trust by his ongoing course of conduct between 7^th September 4^th November 2021. Be that as it may, the TC had stepped back from a finding that Mr Singh/R&J had been involved in “fronting”. Such a finding would have made revocation and loss of good repute inevitable. In the absence of such a finding, the TC’s remaining adverse findings did not. An extended period of suspension could and should have been imposed in the alternative (which Mr Davies considered had already been served in the absence of a stay) along with a significant indefinite curtailment with a full-time Punjabi speaking transport manager in place.

Mr Davies’ second point was that if the Tribunal were to find that the TC’s findings of loss of repute and the order of revocation were proportionate, the period of disqualification for both Appellants was disproportionate. Mr Davies referred to paragraphs 93 and 105 of the Senior Traffic Commissioner’s Statutory Document No.10 “The Principles of Decision Making & The Concept of Proportionality”. He accepted that it was not unreasonable to place this case into the “Severe” category as set out in Annex 4 of Statutory Document No.10 but submitted that in moving up from the starting point of 5 years disqualification, the TC failed to give any weight to the positive features of the case (which were admitted to be scant). When pressed on where the Tribunal might find the positive features (over and above those identified by the TC and set out in paragraph 20 above), Mr Davies accepted that apart from the absence of a finding of “fronting”, there were none. Nevertheless, Mr Davies urged the Tribunal to conclude that the TC’s decision to move away from the starting point of 5 years was disproportionate and plainly wrong.

The Tribunal has detailed much of the history of this case so that any reader of this decision could be no doubt that this was a very serious case which justified the TC’s conclusion that R&J and Mr Singh had lost their good repute and that they could not be trusted to operate compliantly in the future. A finding that R&J deserved to be put out of business was plainly right. Moreover, in view of the many compliance failings and Mr Singh’s conduct as found by DTC Davies during the currency of the interim licence, it is surprising to say the least, that a full licence was granted at all in October 2020. It was clear and obvious that at that stage, Mr Singh and it follows, R&J, could not be trusted. Mr Singh had been given his first chance to demonstrate compliance and trustworthiness in March 2019 and had then been given a second chance when a full licence was granted in October 2020 with regulatory actions taken. He chose not to take advantage of the opportunities he was given to operate compliantly.

As accepted by Mr Davies (and Mr Mason before the TC) there were few positive features which could have been weighed into the balance when considering good repute and revocation. All of the TC’s findings with regard to Mr Singh as an operator and an individual were well supported by the evidence. This was an overwhelming case justifying loss of repute, revocation and disqualification. We do not accept that the TC’s decision to step back from a finding of “fronting” amounted to a positive feature. Her decision simply meant that there was one less seriously aggravating feature to take into account. Those aggravating features that were considered, clearly justified a finding that a disqualification period of seven years was a proportionate order to make in the circumstances.

There is no merit in these appeals and in all the circumstances we are not satisfied that the TC’s decision was either plainly wrong or disproportionate and neither the facts nor the law applicable in this case should impel the Tribunal to allow this appeal as per the test in Bradley Fold Travel & Peter Wright v Secretary of State for Transport (2010) EWCA Civ.695. These appeals are dismissed.