Neutral Citation Number: [2010] UKUT 67 (AAC)

 

Appeal No. 2009/524

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Sarah Bell Traffic Commissioner for the

Western Traffic Area Dated 2 November 2009

 

 

 

Before:

Hugh Carlisle QC Judge of the Upper Tribunal

Leslie Milliken Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

 

 

Appellant:

OCEAN TRANSPORT LIMITED

 

 

 

Attendances:

For the Appellant: No-one appeared

 

 

Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX

Date of hearing: 16 February 2010

Date of decision: 23 February 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

 

 

 

1.           This was an appeal from the decision of the Traffic Commissioner for the Western Traffic Area on 2 November 2009 when she revoked the Appellant Company’s licence under ss.26(1)(h) and 27(1)(b) of the Goods Vehicles (Licensing of Operators) Act 1995.

 

2. The factual background to the appeal appears from the documents and the transcript of the public inquiry and is as follows:

(i) Since 11 May 2004 the Company was the holder of a standard international operator’s licence authorising four vehicles and four trailers, with three and two respectively in possession. The licence was renewed on 28 April 2009.

(ii) Information was received that the Company had been dissolved and a companies’ search confirmed that dissolution had occurred on 24 February 2009. This was put to the Company by letter on 28 April when the Traffic Area Office pointed out that there appeared to have been a material change of circumstances: the Company was invited to make representations and to request a public inquiry. It was warned that the Traffic Commissioner might order revocation in the absence of a reply.

(iii) On 12 May 2009 the Company’s director, Mr Gillard, replied that he had been having problems with his ex-partner. He continued:-

“I had no knowledge that the company had been dissolved and as soon as I found this out I took legal advice and have had the company relisted at companies house and I enclose the relevant documents to your office for your appraisal.

“In the event that this is not sufficient I would ask for a public inquiry in order that I can give you more details with regard to these personal matters.”

A certificate of incorporation of the new Company was provided. This Company had been incorporated on 11 May 2009 in the same name as the Appellant Company. Mr Gillard was named as the sole shareholder, with the same address as before.

(iv) The Traffic Area Office acknowledged the Company’s letter on 18 May 2009 and indicated that the Company would be called to a public inquiry. The letter continued:-

“Although your Company has retained the same name as before, it is a new legal entity and therefore the Traffic Commissioner states that it cannot operate on the existing licence. You must apply for a new licence and if it needs to operate then an interim should also be requested at the same time.

“The Traffic Commissioner can then review the existing licence and new application together at the same public inquiry.

“In the meantime the Traffic Commissioner strongly advises you to seek urgent advice from a transport lawyer so that you do not fall further into error.”

 

 

(v) On 10 August 2009 the Company was called-up to a public inquiry. Material change as a result of the dissolution was put in issue, as was financial standing. On 18 August Mr Gillard sent in the attendance form and stated that he would not be available “due to family holiday which has been booked and paid for”. He requested an adjournment. This was granted and on 19 October Mr Gillard and the Company were informed by first class post and recorded delivery that the public inquiry would take place on 2 November. An attendance form was sent but no reply was received.

(vi) The public inquiry duly took place. The case was called on but the Company did not appear. The Traffic Commissioner waited for nearly an hour and then gave an oral decision. She started by saying that the Royal Mail website showed that the letter of 19 October 2009 had been signed for on the following day. Accordingly she was satisfied that the operator was “aware of these proceedings and has chosen not to attend”. There had been no message that the director had been delayed. She went on to find that there was an admitted change in entity: she said “whilst the name of the operator may be the same there is an entirely new company number”. She revoked the licence by reason of material change and lack of financial standing, as set out in paragraph 1 above. As she said:-

“There has been a material change and no finance has been produced in the name of the operating entity, nor indeed could it be bearing in mind that it has to be in the name of the actual entity.”

The Traffic Commissioner reserved issues of repute and professional competence for consideration with the application for a licence by the newly incorporated company.

(vii) By the notice of appeal dated 10 December 2009 the Company complained that it had not received proper notice of the time or date of hearing:” the regulations are 28 days notice and I was only given 17 days notice”.

 

3. The Appellant did not appear on the hearing of the appeal. No messages were received. A Tribunal staff member telephoned the number provided on the notice of appeal and spoke to someone at the address provided by the Company and to which all correspondence has been sent, by both the Traffic Area Office and the Tribunal. Notice of the appeal hearing was sent on 20 January 2010 and the staff member was assured that correspondence to the Company had been received. In the circumstances the Tribunal decided to hear the appeal in the Appellant’s absence.

 

4. The provisions relating to the giving of notice to a public inquiry are set out in Schedule 4, Goods Vehicles (Licensing of Operators) Regulations 1995. By paragraph 1(1) the Traffic Commissioner is obliged to give 21 days’ notice of the date and time fixed for the holding of a public inquiry. The date, time and place may be varied, but, if so, by paragraph 1(2) at least 21 days’ notice must again be given. Paragraph 1(6) provides for seven days’ notice in respect of an adjourned inquiry but this is of no relevance here since the earlier inquiry never began. However, paragraph 7 provides that if there has been an irregularity in the giving of notice “the Traffic Commissioner may nevertheless proceed with the inquiry as if notice had been duly given provided he is satisfied that no injustice or inconvenience would be caused”.

 

 

5. We have considered all the papers and have to say that the Appellant Company has been given every consideration by the Traffic Area Office and the Traffic Commissioner. The situation was plainly spelt out from the beginning and the reality is that the Company’s position was hopeless, with revocation being inevitable: although s.26 of the Act contains discretionary powers, it is to be noted that those under s.27(1) are mandatory. We have to say that the Traffic Commissioner was right both to proceed with the hearing and to revoke the Company’s licence. We note that the notice of appeal does not suggest that the Company was unaware of the hearing.

 

6. The appeal is dismissed.

 

 

 

 

 

Hugh Carlisle QC

Judge of the Upper Tribunal

23 February 2010