Neutral Citation Number: [2014] UKUT 0500 (AAC)                            Appeal No: T/2014/63

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF J A ASTLE, 
DEPUTY TRAFFIC COMMISSIONER for the WELSH TRAFFIC AREA, 
DATED 16 JULY 2014

Before:
Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
Mr G Inch, Member of the Upper Tribunal.
Mr M Farmer, Member of the Upper Tribunal.

Appellant:
PILKINGTON ASBESTOS REMOVAL SERVICES LTD

DEREK PILKINGTON
BARBARA PILKIGTON

Attendance:
For the Appellant: 	Mr T Sasse, Counsel, instructed by Aaron & Partners, Solicitors

Appeal heard at: 	Field House, Breams Buildings, London
Date of hearing: 	8/10/2014
Date of decision: 	4/11/2014

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeals be allowed.
All matters are remitted back to be re-heard by a Traffic Commissioner
or Deputy Traffic Commissioner, other than Mr Astle.

Subject matter:	
Evidentially established and prejudicial advice, formally admitted by professional adviser.

Cases referred to:
None

REASONS FOR DECISION

1)	This was an appeal from the decision of the Deputy Traffic Commissioner for the Welsh Traffic Area made on 16 July 2014 when he revoked the operator’s licence held by Pilkington Asbestos Removal Services Ltd (“the operator”) and disqualified Derek Pilkington and Barbara Pilkington (“the directors”) from holding or obtaining a goods vehicles operator’s licence for a period of two years. He also made an order under S28(4) Goods Vehicles (Licensing of Operators) Act 1995.

2)	We have decided this case on a narrow point but, since the consequence of our decision is to remit the matter back to be re-heard by a different Traffic Commissioner or Deputy Traffic Commissioner, we shall confine our decision to the material issue arising so as not to prejudice or suggest that we have formed any view as to other matters of substance

3)	We would also wish to say, at the outset, that our decision does not imply any criticism of the Deputy Traffic Commissioner, and we are anxious not to set an unhelpful precedent. For that reason we should say that we consider the facts, and the evidence that we admitted of circumstances not made known to the Traffic Commissioner at the time of the public inquiry, to be most unusual, and unlikely to be repeated.

4)	Following the issue of call-up letters to the operator and to the directors, that were all received, a public inquiry was held in Welshpool on 30 May 2014.

5)	At the public inquiry, the operator and directors were represented by Mr L Cook, a Transport Consultant with Penkridge Transport Management. Neither director was present.

6)	Mr Cook made an application to adjourn the public inquiry for no more than four weeks. He explained that until just over a week before the public inquiry, the directors had hoped that the operator’s transport manager would represent them and the operator at the public inquiry. Unfortunately, on or about 21 May 2014, the transport manager was dismissed. Mr Cook explained that the dismissal occurred suddenly: “Everything came to a head because they (the directors) were asking for information and not receiving any”.

7)	The operator’s business is asbestos removal – a specialist and potentially dangerous service. The licence held is a standard national licence authorising 3 vehicles, but with only one in possession – a 2005 specially adapted skip loader used to transport sealed containers (described as “pods”) carrying asbestos for safe disposal. Mr Cook explained that the directors are: “not transport people; they’re fully reliant on their transport manager and the information from him”.

8)	The Deputy Traffic Commissioner asked:

DTC: Why is there no board-level director of the company present today?

Mr Cook: I can’t answer that.

DTC: Am I correct in assuming that the operator company, having had advice from you, is aware that I may refuse an application for an adjournment and may proceed in the absence of the company, and that the powers I have, on so proceeding, include the power to revoke, suspend, curtail and so on?

Mr Cook: Yes, sir.

9)	The Deputy Traffic Commissioner noted that financial information had not been submitted, as required in the call-up letter to the operator. He asked Mr Cook why the financial information required to establish financial standing was not available. Mr Cook said:

“I’m unsure. I know that an envelope was handed to me on Tuesday that I’ve given to my director and I’m sure that’s the one that contains their financial standing, but it was a sealed envelope so I didn’t open it.”

10)	The Deputy Traffic Commissioner refused the application for an adjournment and indicated an intention to proceed. Mr Cook then said that he could not represent the operator or directors if the hearing continued – adding “I’m just working on behalf of Penkridge”.

11)	Having learned of the Deputy Traffic Commissioner’s decision as set out above in paragraph 1, the operator and directors instructed solicitors with experience of transport law – which is a complex area of law practiced by a limited number of specialist law firms.

12)	The Grounds of Appeal allege that the Deputy Traffic Commissioner was “wrongfully misled by the representative (Mr Cook) who attended the public inquiry and falsely stated that:

(a)	the directors were aware the hearing could proceed in their absence and could result in serious regulatory action against their licence when he knew that the directors had been advised that the hearing would be adjourned and that they should not attend;

(b)	he could give no explanation as to why neither director had seen fit to appear in person;

(c)	he had no explanation why evidence of financial standing had not been provided to the Office of the Traffic Commissioner (“the OTC”) by 23/5/2014 … whereas he knew that the operator had not been advised by Penkridge Transport Management to provide such information … and Penkridge Transport Management had been furnished with such evidence of financial standing on 15/5/2014;

(d)	if the public inquiry was to proceed he was not instructed to represent the operator or directors whereas the appellant operator had in fact retained Penkridge Transport Management to deal with all aspects of its compliance including the conduct of the public inquiry process as a whole.”

13)	In advance of the hearing before the tribunal, an application was made to adduce fresh evidence, including a signed witness statement from Mr Alexander Paul Duncan, Managing Director of Penkridge Transport Management. This statement deals solely with circumstances that existed at the time of both the public inquiry and the Deputy Traffic Commissioner’s decision. Furthermore, we decided that the fresh evidence was admissible evidence which (in the unique circumstances pertaining) the operator and directors could not have been expected to place before the Deputy Traffic Commissioner at the public inquiry themselves. We also considered that the evidence, if given, would probably have had an important influence on the result of the case and, coming as it did from the Managing Director of Penkridge Transport Management himself, it was apparently credible because it was evidence against his interests. We therefore admitted it as fresh evidence.

14)	Mr Duncan’s statement explains that, having seen the publication of the public inquiry, his business development manager contacted the operator and spoke to Mr Pilkington. As a result of that call, Mr Duncan attended at the operator’s premises and met Mr Pilkington who explained that he was concerned about the operator’s transport manager. The public inquiry papers had arrived that day which appeared to contain information contrary to what the transport manager had been saying. Mr Duncan advised that the transport manager be dismissed and offered himself as acting nominated transport manager until a suitable replacement could be recruited. Mr Pilkington decided to engage the services of Penkridge Transport Management and a “retainer” was agreed intended to cover both a compliance audit and representation at the public inquiry.

15)	Mr Duncan advised Mr Pilkington that he would seek an adjournment of the public inquiry. He (Mr Duncan) then made a number of telephone calls to the Traffic Commissioner’s office, and he was told that the matter would be placed before the Deputy Traffic Commissioner. Eventually, he was told that the Deputy Traffic Commissioner “would hear the application for an adjournment”.

16)	Mr Duncan says that, based on all the circumstances, he formed the view that the adjournment would be granted, and he specifically told the directors that they did not need to attend the hearing.

17)	At the hearing of this appeal, the Appellants were represented by Mr Sasse who submitted a skeleton argument for which we were grateful.  In relation to the point upon which this appeal turns, Mr Sasse submitted that Mr Cook had made a series of statements to the Deputy Traffic Commissioner which were factually incorrect and which fundamentally misrepresented the position of the operator and directors. In particular, he failed to disclose that:

(a)	Penkridge Transport Management were acting under a retainer to include representation at the public inquiry;

(b)	the directors had been advised by the Managing Director of Penkridge Transport Management that the hearing would be adjourned and that, consequently, they did not need to attend;

(c)	the directors were not aware that the hearing might proceed in their absence;

(d)	the directors were not advised that the evidence of financial information still had to be submitted to the Traffic Commissioner’s, and they were not advised to file the financial information directly, themselves; and

(e)	Mr Duncan had very recently been engaged to perform the role of transport manager following the dismissal of the previous Transport Manager.

18)	In our view, had the Deputy Traffic Commissioner been told these facts, there is a real possibility that his decision to refuse an adjournment might have been different. We recognise, of course, that he may have nevertheless had some concerns as to why directors of a company would have accepted what appears to be extraordinary advice. However, given that the directors only operate one vehicle, that this is not a ‘haulage’ firm in the conventional sense, and the directors are not “transport people” - we find that it is not unduly surprising that they accepted the advice received at face value after they had been approached by a firm of Transport Consultants and had engaged their services. 

19)	We are acutely aware that it would be regrettable if this decision led other operators to imagine that it might be a viable tactic to fail to attend at a public inquiry, see what the outcome is and then, if the outcome is undesirable, to then seek to blame their non-attendance on lack of advice or poor advice. However, what sets this case apart is the fact that the poor advice relied upon is clearly and unambiguously admitted in a signed statement from the Managing Director of Penkridge Transport Management, and it is hard to see how such an admission, against the interests of the person making the admission, is likely to become a repeated strategy to be copied by others in the future.

20)	Proceedings before a Traffic Commissioner involve the determination of an operator’s civil rights and obligations, and may result in the loss of a possession upon which a good business depends. There must be a fair hearing. For that reason, and having regard to the facts as we now understand them to be, we have decided that fairness requires that the matter be remitted to be re-heard. However, we say again that we have found no fault in Mr Astle’s approach, and his decision not to grant an adjournment was entirely reasonable, having regard to the incorrect information that he was given at the time.

21)	The appeal is allowed. All matters are remitted back to be re-heard by a Traffic Commissioner or Deputy Traffic Commissioner, other than Mr Astle.

Judge Mark Hinchliffe, DCP
4/11/2014