ADA Haulage Ltd

This is the appeal of A.D.A. Haulage Limited (“the Appellant”) to the Upper Tribunal from a decision of a Deputy Traffic Commissioner (the ‘DTC’), contained in a letter and written reasons dated 10 August 2021, to revoke the company’s operator’s licence. The Order for revocation followed a public inquiry held remotely on 10 August 2021 by video technology (MS Teams). The DTC announced his decision orally at the end of the hearing but prepared written reasons of the same date.

The order of revocation was made under the DTC’s discretionary powers pursuant to section 26(1)(a), (b), c(iii), (f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995 (‘the Act’). It was to take effect at 2345 hours on 10 September 2021. The Appellant made no application for a stay of the DTC’s decision so that the order for revocation came into force on that date.

The Appellant appealed to the Upper Tribunal on 6 September 2021. The notice of appeal was prepared by its sole director, Mr Inout Alexandru Covaci but listed Mr Sidhu, the Transport Manager, as the representative. The notice included the following grounds of appeal:

The hearing before the Tribunal was listed for 12pm on 23 January 2023 but no party attended by that time or 12.30pm. The Appellant’s sole director, Mr Covaci, did not attend, nor did any person or representative on behalf of the Appellant company.

The Tribunal clerk rang Mr Covaci who stated that he was in Ipswich and believed the hearing was to be taking place on 26 January 2023. As instructed by the Tribunal, the clerk rang a further time to specifically ask whether Mr Covaci sought an adjournment or postponement of the hearing. The clerk informed the Tribunal that Mr Covaci had stated he did seek such an adjournment so that he could attend on another hearing date.

We refused that application for an adjournment and gave our decision in open court to proceed in absence. Below, we repeat and expand upon our reasons for doing so.

First, we are satisfied it was in the interests of justice to proceed in the Appellant’s absence. We are satisfied that, for the purposes of Rule 38 of the Tribunal Procedure (Upper Tribual) Rules, the Appellant had been notified in writing of the correct date, time and venue of the hearing on two occasions.

The Appellant company, of which Mr Covaci is the sole director, was first notified in writing by letter from the Tribunal dated 16 December 2022 which was sent by email. The same notification was sent to Mr Sidhu, the Appellant’s proposed transport manager who was listed on the notice of appeal as the appellant’s representative.

A hard copy of the appeal bundle was sent to the Appellant on 23 December 2022.

There was no reply to any of the correspondence from the Tribunal which included a request to confirm attendance at the hearing.

In light of this, on 13 January 2023, the Tribunal sent a reminder letter to the Appellant and Mr Sidhu regarding the upcoming hearing asking for confirmation as to who would be attending.

On 16 January 2023 Mr Covaci replied to the Tribunal in an email stating:

We make no findings as to the truth of the contents of this email – serious allegations have been made against another person, who is a representative but not a party to proceedings, and has not had an opportunity to respond. Likewise, we make no findings regarding the reliability or credibility of Mr Covaci and his integrity, even if the contents of this email were true. Further, we disregard the email when considering the substance of the appeal. The email is irrelevant to the substantive issues before us - whether the DTC was wrong in making his decision to revoke the licence on the grounds he relied upon. The contents of the email are irrelevant to the issues in the appeal and we therefore put them out of our mind.

However, the important point to note from the email is that it does suggest that Mr Covaci was aware of the hearing and the forthcoming appeal and wanted to make written representations. We are therefore satisfied that the Appellant had been properly and accurately notified of the date, time and place of the hearing for the purposes of Rule 38(a).

To the extent Mr Covaci believed the hearing was to take place on 26 January 2023, we are satisfied he was at best careless and should reasonably have been aware of the date and made steps to attend if he wished to attend. Alternatively, he deliberately and voluntarily chose not to attend.

In the circumstances of the case, we are satisfied that it is was in the interests of justice to proceed in the Appellant’s absence for the purposes of Rule 38(b). We are satisfied that the Appellant, through Mr Covaci and Mr Sidhu, had a reasonable opportunity to make representations in writing and orally to present their appeal and arguments and any evidence. They made written representations in the notice of appeal and in the recent email from Mr Covaci in his email of 16 January 2023.

Second, we are satisfied it was just and fair to refuse the adjournment application. We are satisfied that it is just and fair to refuse the adjournment, in accordance with our case management powers under Rule 5(3) and the overriding objective under Rule 2. We have taken into account fairness in the proceedings. The Appellant has been given a full opportunity to participate and repeatedly notified of the hearing but not attended. We will take into account everything relevant that it has said in writing, the Appellant’s grounds of appeal submissions and arguments regarding the DTC’s decision, as part of our consideration. The Appellant had the opportunity to serve any further written evidence in support of the appeal but has not done so. We also take into account that the appeal is effectively one as to a point of law and we would not be considering live oral evidence in any event.

We also take into account the need to avoid delay. The case is already old – 16 months have passed since the notice of appeal was lodged at the Upper Tribunal. We have taken into account prejudice to the Appellant - having regard to the consequences for the Appellant of proceeding in its absence given the seriousness of the appeal and the issue at stake – revocation of its operator license. However, we note that the Appellant has not applied for the stay of the decision, thus the revocation of the licence took place 16 months ago so that the Appellant cannot have operated Goods Vehicles for an extensive period of time. It has not sought to remedy this. Further, Mr Covaci states he ‘was’ a director so the status of the Appellant company itself is not clear.

As set out above, the DTC held a public inquiry (PI) on 10 August 2021 and gave an oral decision at the end of proceedings which was followed by a written decision with reasons that were sent to the parties.

Relevant parts of the DTC’s written decision dated 10 August 2021 were as follows:

Section 13A(2) of the Goods Vehicles (Licensing of Operators) Act 1995 provides some of the requirements that must be satisfied for the grant of standard licences:

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

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

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

A traffic commissioner (TC) may revoke a licence once granted under section 26 of the Act (discretionary revocation). The relevant sections of section 26 of the 1995 Act as relied upon in the Traffic Commissioner’s decision are included below:

“(1)

Subject to the following provisions of this section and the provisions of section 29, a traffic commissioner may direct that an operator's licence be revoked, suspended or curtailed (within the meaning given in subsection (11)) on any of the following grounds—

(a)

[ in the case of a heavy goods vehicle licence,] that a place in the [traffic area to which the licence relates] has, at a time when it was not specified in the licence as an operating centre of the licence-holder, been used as an operating centre for [heavy goods] vehicles authorised to be used under the licence;

(b)that the licence-holder has contravened any condition attached to the licence;

(c)that during the five years ending with the date on which the direction is given there has been—

(i)a conviction of the licence-holder of an offence such as is mentioned in any of sub-paragraphs (a) to (i) of paragraph 5 of Schedule 2;

(ii)a conviction of a servant or agent of the licence-holder of any such offence, other than an offence such as is mentioned in sub-paragraph (c), (e) or (h) of that paragraph; or

(iii)a prohibition under section 69 or 70 of the Road Traffic Act 1988 (power to prohibit driving of unfit or overloaded vehicles) of the driving of a vehicle of which the licence-holder was the owner when the prohibition was imposed;

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

his application for the licence,

an application for the variation of the licence, or

a request for a direction under paragraph 1 or 3 of Schedule 4,

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

Mandatory revocation by the TC is enabled by section 27(1) of the 1995 Act:

The burden of proof during a PI requires the Traffic Commissioner to be satisfied of the grounds for revocation as noted by Rix LJ in Muck It Ltd and Others v. Secretary of State for Transport (2005) EWCA Civ 1124:

“69.

Turning back to sections 26 and 27 of the 1995 Act, I would conclude that for revocation to be possible under the former or mandatory under the latter, it is the commissioner who must be satisfied of the ground of revocation, and not the licence holder who must satisfy him to the contrary. That seems to me to be the natural way to regard both the language of those sections, and the situations contemplated in them. The context is that of a licence holder and the possible revocation of his licence. Revocation can only be done on some specified ground (section 26) or because one or other of the three fundamental requirements is no longer satisfied (section 27). Under section 26(4), the commissioner can only act if “the existence of” a ground comes to his notice. It is counter-intuitive to think of a licence holder being required to negative the existence of a ground raised against him. So with section 27. The commissioner must revoke if “it appears to him” that the licence holder is no longer of good repute or of appropriate financial standing or professionally competent. That seems to me to mean that the commissioner must be satisfied that the requirements are no longer fulfilled. If it had been intended to place the same burden on the licence holder as had been placed on the original applicant, then the same language as that found in section 13 would have been used.”

Revocation must be proportionate: - the approach to proportionality was considered in 2002/217 Bryan Haulage (No.2):

“In applying the Crompton case it seems to us that traffic commissioners and the Tribunal have to reconsider their approach. In cases involving mandatory revocation it has been common for findings to have been made along the lines of ‘I find your conduct to be so serious that I have had to conclude that you have lost your repute: accordingly, I have also to revoke your licence because the statute gives me no discretion’. The effect of the Court of Appeal’s judgment is that this two-stage approach is incorrect and that the sanction has to be considered at the earlier stage. Thus, the question is not whether the conduct is so serious as to amount to a loss of repute but whether it is so serious as to require revocation. Put simply, the question becomes ‘is the conduct such that the operator ought to be put out of business?’. On appeal, the Tribunal must consider not only the details of cases but also the overall result.”

[Emphasis Added]

An additional and preliminary question to that in Bryan Haulage (No.2) should also be asked as explained in 2009/225 Priority Freight:

“The third point taken by Mr. Laprell was that the Traffic Commissioner gave no reasons for concluding that ‘the conduct was such that the Appellant company ought to be put out of business’. There will be cases where it is only necessary to set out the conduct in question to make it apparent that the operator ought to be put out of business. We are quite satisfied that this was not such a case. On the contrary this was a case which called for a careful assessment of the weight to be given to all the various competing factors. In our view before answering the ‘Bryan Haulage question’ it will often be helpful to pose a preliminary question, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime? If the evidence demonstrates that it is unlikely then that will, of course, tend to support a conclusion that the operator ought to be put out of business. If the evidence demonstrates that the operator is very likely to be compliant in the future then that conclusion may indicate that it is not a case where the operator ought to be put out of business. We recognise, of course, that promises are easily made, perhaps all the more so in response to the pressures of a Public Inquiry. What matters is whether those promises will be kept. In the present case the Appellant company was entitled to rely on that old saying that ‘actions speak louder than words’.”

[Emphasis Added]

Paragraph 17 of Schedule 4 to the Transport Act 1985 provides:

to remit the matter to—

Paragraph 17(1) of Schedule 4 to the Transport Act 1985 thus provides that “the Upper Tribunal are to have full jurisdiction to hear and determine all matters (whether of law or of fact) for the purposes of the exercise of any of their functions under an enactment relating to transport”.

Nonetheless, in Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695, the Court of Appeal explained that the then Transport Tribunal (now the Upper Tribunal) is not required to re-hear all of the evidence but, instead, has the duty to determine matters of fact and law on the basis of the material which was before the TC but without having the benefit of hearing and seeing from witnesses. The court applied Subesh and ors v Secretary of State for the Home Department [2004] EWCA Civ 56, where Woolf LJ held:

“44….The first instance decision is taken to be correct until the contrary is shown…An Appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one…The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an Appellant assumes is to show that the case falls within this latter category.”

The Court of Appeal therefore explained that an appellant assumes the burden of showing that the decision which is the subject of the appeal is ‘wrong’ (what used to be referred to as ‘plainly wrong’), in order to succeed. An appellant must show not merely that there are grounds for preferring a different view but that there are objective grounds upon which it ought to be concluded that the different view is the right one. Put another way, an appellant, in order to succeed, must show that the process of reasoning and the application of the law requires the Upper Tribunal to take a different view.

The Upper Tribunal, in deciding an appeal such as this, is not permitted to take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal (see paragraph 17(3) of Schedule 4 to the Transport Act 1985). Therefore, we should not have regards to events that post-date the revocation decision of 22 October 2021 in deciding whether the TC’s decision is wrong.

We are not satisfied that the Appellant has demonstrated that the DTC’s decision of 10 August 2021 to revoke its operator’s licence was wrong. The DTC made very serious findings against the operator and Mr Covaci in his written reasons dated 10 August 2021 which followed the PI. Paragraph 12 sets out numerous breaches and failures on the part of the operator, Mr Covaci and others.

The grounds of appeal state:

Essentially, Mr Covaci has not sought to dispute most of the findings of the DTC in his grounds of appeal ‘We accept our mistakes we done in the past…’. To the extent that ground 5 (and possibly ground 4) disputes the DTC’s factual findings as to past conduct, we reject it. We are satisfied that the DTC’s findings were reasonably open to him on the evidence before him, he gave sufficient reasons for the findings, he took into account relevant evidence and ignored irrelevant evidence. We are satisfied that all the findings at paragraph 12 of the decision that were multiple and serious breaches were not ‘wrong’ in law or fact.

The remaining grounds 1-4 and 6-7 appear to apply to the Appellant’s current operation at the time of the decision or the appeal and be forward looking. We can only examine the events and evidence as it relates to the circumstances at the time of the DTC’s revocation decision. The appeal therefore turns on the reasonableness and proportionality of the revocation decision and whether the DTC properly and fairly applied and answered the Priority Freight and Bryan Haulage questions or whether he exercised his discretion rationally.

We are satisfied that the DTC conducted the exercise properly and rationally and his decision cannot be considered to be wrong in any sense, let alone ‘plainly wrong’. The DTC asked the proper and correct questions and answered them reasonably. He took into account and balanced the positive material in favour of the Appellant when making his revocation decision (and in refusing to make any disqualification order).

The Appellant submits that the DTC failed to give sufficient weight to the positive evidence of change and attitude and the demonstration of future compliance as set out in Grounds 1-4 and 6-7. However, we are satisfied that the DTC did take into account this evidence at paragraphs 12(r) and 13 of his decision (primarily assistance from a proposed transport manager as from April 2021). Having read the transcript of the PI and other material available to the DTC, there was no other detailed or written evidence in support of the argument that there had been such a significant change or attitude on behalf of the Appellant and that this was so powerful as to outweigh the very serious findings as to the past breaches committed. The DTC was entitled to find that revocation would be proportionate.

At paragraph 15 of the DTC’s decision, he was entitled to find that he could not trust the operator going forward and the conduct was so serious the operator should be put out of business for the reasons he gave:

Therefore, it cannot be said that the DTC ignored or failed to take into account any relevant evidence or that his decision was unreasonable or disproportionate. Furthermore, in the exercise of his discretion he was entitled to decide the Priority Freight and Bryan Haulage questions in the way that he did.

We are not satisfied that the DTC’s revocation decision has been demonstrated to be wrong. Accordingly, the appeal is dismissed. Given that the revocation was to come into force on 8 September 2021 and there has been no application for a stay, the DTC’s decision has already been effected and no further order is required.