Upper Tribunal Upholds Decision to Revoke Operator's License

1

IN THE UPPER TRIBUNAL

Appeal No. T/2018/67 ADMINISTRATIVE APPEALS CHAMBER NCN: [2020] UKUT 0144 (AAC) ([NAME])

ON APPEAL from a DECISION of the [NAME] for the North West of England

Dated:

10 September 2018

Before:

Mr M Hemingway: Judge of the Upper Tribunal

[NAME]: Member of the Upper Tribunal

Mr L [NAME]: Member of the Upper Tribunal

Appellant:

[redacted]

OCO293454

Attendances:

[NAME], QC (Counsel)

Heard at:

[ADDRESS], [POSTCODE]

Date of Upper Tribunal Hearing: 13 February 2020

Date of Decision:

30 March 2020

DECISION OF THE UPPER TRIBUNAL

The appeal is dismissed.

Subject matter: Good repute: professional competence: disqualification.

Cases referred to: [COMPANY] and [NAME] v Secretary of State for Transport [2010] EWCA Civ 695 [COMPANY] and [COMPANY] v Secretary of State for Transport [2020] UKUT 0005 (AAC).

[2020] UKUT 0144 (AAC)

2 T/2018/67 REASONS FOR DECISION

Introduction

1. This is an appeal to the Upper Tribunal brought by [NAME] (the appellant) from a decision of a [NAME] ([NAME]) made on 10 September 2018 following a public inquiry ([NAME]) held on 9 August 2018. The [NAME] decided to revoke an Operator’s Licence held by the appellant, decided that he had lost his repute and decided to disqualify him from holding or obtaining an Operator’s Licence for a period of eighteen months, whether as a sole trader, partner or director of a business.

The Background

2. The appellant held a Standard International Goods Vehicle Operator’s Licence, which had been in force since June 1999, authorising seven vehicles and eight trailers. His father [NAME] held a separate Standard National Goods Vehicle Operator’s Licence which had been granted on 18 November 2015. The nominated transport manager ([NAME]) with respect to the licence held by the appellant was one [NAME]. Both operators had originally been called to a [NAME] alongside a third operator one [NAME] whose [NAME] had been [NAME] prior to his resignation on 19 February 2018. However, matters concerning [NAME] had been dealt with in advance of the [NAME] and her Operator’s Licence had been revoked. But the [NAME] at which the cases involving [NAME] and the appellant were considered, also involved the positions of [NAME] and [NAME] as [NAME]’s as well as a third [NAME] one [NAME].

3. On 10 October 2017 a vehicle owned by the appellant and displaying a disc indicating it was operated by him (though it was not at that time listed on his Operator’s Licence) was stopped by [NAME]. He discovered that an AdBlue emulator device was fitted to the vehicle. He investigated the matter at that time and concluded that what he had detected was “a cheat device”. A follow-up investigation was then carried out by [NAME] who looked into the matter of the AdBlue device as well as a history of prohibition notices. He thought that whilst the appellant had been co-operative with him, he had been failing to comply with a statement of intent and undertakings attached to the licence. He also noted, in the course of his investigations, that the nominated [NAME] had not been present at any stage and was recorded as having been “off sick”.

4. In addition to the above matters, investigations revealed concerns regarding what was described as the “intermingling” of the two operations run by the appellant and [NAME]; the lack of a [NAME] playing an active role with respect to the [NAME] operation; and a concern that the appellant had previously been operating the licence of [NAME] as if it were his own.

5. All of the above matters were considered at the [NAME] of 9 August 2018.

Relevant legislative provisions in brief

6. Under section 2 of the Goods Vehicles (Licensing of Operators) Act 1995 a person shall not use a goods vehicle on a road for the carriage of goods for hire, reward, or in connection with any trade or business carried on by him/ her unless that person possesses an Operator’s Licence. Section 13A sets out some requirements which an operator must meet not only when a licence is sought but throughout its currency. Included is a requirement of professional competence. Schedule 3 to the above Act links a company’s competence to that of its [NAME]. Section 27 of the above Act gives a [NAME] the power to direct revocation of a standard licence and Section 28 confers a power on a [NAME] to order that the holder of a licence revoked under Section 27 be disqualified either indefinitely or for such period as the [NAME] sees fit, from holding or obtaining a licence.

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3 T/2018/67 The Public Inquiry and the [NAME]’s decision

7. Of those called to the [NAME], the Appellant, [NAME] and [NAME] were in attendance. [NAME] did not attend even though his repute was in issue. [NAME] was in attendance and gave oral evidence. [NAME] gave evidence via a telephone link. The appellant and [NAME] were represented by the same solicitor who, as we understand it, is from a [NAME] well-versed in traffic law.

8. There is a transcript of what was said at the [NAME] in the papers before us. We have read the contents with care. After the [NAME] had taken place the [NAME] reserved his decision. The terms of the decision, with respect to the Appellant, are set out above. His reasoning is explained in his written reasons of 10 September 2018.

9. As to matters which had led to the appellant being called to a [NAME] the [NAME] said this:

“Regarding DJ

viii. That on 10 October 2017 a vehicle, [ID], owned by him and displaying a DJ disc but not then listed on the DJ licence, was stopped by Vehicle Examiner ([NAME]) [NAME]. The [NAME] discovered that an AdBlue emulator device was fitted to the vehicle. A delayed “S” marked prohibition had been issued in respect of the tractor unit. The [NAME] had noted on his physical examination that the AdBlue tank was ¾ full, yet the relevant gauge showed exactly ¼ of a tank. The driver had told him the AdBlue gauge never moved. The [NAME] had concluded that because of these matters, representing typical “tell-tale” signs of the fitting of a so-called “cheat device” to interfere with the emissions control system that he should seek out such a device. He went on to find that fuse No. 357 (that which powers and protects emission control systems) was absent. He gave evidence that the absence of warning signals or engine de-rating also indicated the fitting of a device, as, when he had then removed fuse No. 6 which he said would, in an unaffected vehicle, lead to an audible warning and to the AdBlue gauge dropping to zero, neither had happened. He then found such a device hidden behind an instrument panel. He said that due to a shortage of time at the end of his shift, he had not photographed it. When put to him, he did not accept the argument put that what he had seen might have been a tracker device and not a cheat device;

ix. [NAME] had initially been deputed to carry out a follow-up investigation of DJ’s licence compliance, following another of DJ’s vehicles, [ID] receiving an earlier “S” marked immediate prohibition on 06 July 2017 for a steering component being found to have failed. His visit in October 2017 however, also included an initial consideration of the circumstances of the unlawful AdBlue device being fitted. Both DJ and [NAME] had been present and a formal interview had been conducted with DJ, who claimed only to have found out about the AdBlue prohibition when the prohibition notice had arrived in the post. He denied that the vehicle was being operated under the DJ licence at the time of issue of the prohibition, it having been removed on 26 September 2017 from his licence, when it was added to the licence of the aforementioned [NAME]. He claimed it had been loaned by him to that operator and that it must then have been used by a casual driver. It was denied by DJ that he had fitted the AdBlue device on the vehicle, which had though previously undergone major repairs, including the fitting of a replacement engine from a younger vehicle. It was admitted that the vehicle had suffered emissions control system problems.

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4 T/2018/67

x. It was said that vehicle had been sold for export on 23 September 2017, which was before the stop, although it had not then been collected for that purpose. I was told the vehicle had since gone to the new buyer but before DJ had any opportunity to investigate the device found, or to remove it and to present the vehicle for clearance of the S marked prohibition;

xi. In the first of his two Public Inquiry statements [NAME] concluded that the operator had maintenance systems in place but reflected other concerns about the nature of the prohibitions issued, about proper display of operator’s licence discs and the sale of the vehicle at a time when a prohibition was still in force. Whilst he found the operator cooperative, he judged that he was failing to comply with the statement of intent and undertakings attached to the licence;

xii. [NAME]’s further statement took in to account the issue of the third in a series of “S” marked prohibitions on 29 March 2018, which concerned a trailer, number C136432. DJ was engaged in traction-only work for a third party, which owned the trailer. It was accepted that the driver had not carried out any walk-round check and had failed to notice the absence of an MOT plate displayed on the trailer: its MOT had expired some 3 months’ earlier. The driver had since been dismissed by DJ;

xiii. The operator was advised during the [NAME]’s investigation about the need for quarterly rolling road brake tests and the implementation of a written wheel re-torque system;

xiv. [NAME] had noted that the nominated [NAME], had not been present at any stage and recorded being told he was “off sick”;

xv. [NAME] had however recorded a “mostly satisfactory” TEOR, when she had visited on 3 November 2017.”

10. As to relevant findings applicable to the appellant the [NAME] said this:

“Findings

14. My findings, on the evidence both written and oral, about matters in contention as well as those not disputed are conveniently set out in the following paragraphs.

The businesses of [NAME] and DJ and the [NAME] arrangements

15. In the light of the written evidence and that given by [NAME] and DJ, I found that it was accepted by them that there was a significant “blurring” of the activities of the two businesses, and that this “cross-over” was also reflected in the day- to-day operation of the licences. This was in the sense that [NAME] and DJ had active roles in each other’s licence. It was accepted by them that drivers and others might well be confused as to whom they worked for, or reported to. TJ Hughes was DJ’s main client but [NAME] stated that this client might well think he was running the business. Some work was carried out interchangeably and without any necessary cross-invoicing in place. Vehicles would be loaned without being added to the other licence, there being no formal loan agreement, or any charge levied. There were shared offices and email addresses and [NAME] covered for the personal circumstances that made it more difficult for DJ to deal with administrative matters: he was paid for this. Sometimes the post received for the DJ business might have to wait up to a week before it might be looked at by [NAME]. DJ accepted that his conduct of his business was “rather informal”, although he said that in recent times things were changing with the assistance of [NAME].

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5 T/2018/67

16. I found that this major intermingling of operations went far beyond a description of the sort of support that father and son would likely offer to each other, when each was engaged in a similar field of activity. I am prepared to accept that this situation was probably not a deliberately contrived arrangement but one more likely to have grown over time. It will however have included unlawful operation, since it will not have been possible to determine who was operating a vehicle on a particular day, or to have clarity about the control of drivers. Such a state of affairs (as it developed) ought to have prompted the sort of application for the union of these businesses into a single enterprise (or a proper separation) as is now before me, but well before the threat of these proceedings. The fact this was not done goes directly to the repute of both licence holders and to the repute of their transport managers, who must have been aware, or ought to have been aware of the fact.

17. [NAME], a [NAME] holder, had been assisting DJ informally, since [NAME] had “disappeared” from the role of [NAME], apparently due to his health issues. DJ admitted that [NAME] had ceased to attend and act in his role before Christmas 2017 but that even before then he had been struggling to carry it out. I was told he had “not been interested for 12 to 18 months” but this had never been notified to my office as a material change affecting professional competence and repute.

18. Neither had [NAME] himself notified the material change caused by his absence, nor had this hearing prompted such report. There has been and there is now no professional competence in the business. These findings go directly to repute.”

11. And then:

“The AdBlue device

21. DJ denied fitting, or being responsible for the fitting of the AdBlue cheat device. It was put on his behalf that [NAME] might have mistaken the device he saw for a tracker. DJ had produced physical evidence at the hearing. That is both an AdBlue tank and a tracker device with its associated wiring. The tank had been removed from what was described as a “sister vehicle” of [ID]. DJ sought to contend that it would have been impossible for [NAME] to estimate how much AdBlue was contained in it by shining his torch into the filler nozzle (as he had suggested). [NAME], an experienced [NAME], did not accept that contention.

22. I preferred the evidence of [NAME] to that offered by DJ. I judge that the physical evidence before me (such as it was, since it was not based on the vehicle in question, but a tank from another vehicle) that the [NAME] was mistaken or wrong about the filled level of the tank, as utterly unconvincing and unpersuasive. Further, I was satisfied that [NAME], who had identified over 40 such cheat devices since the fitting of these system modifications to vehicles had become relatively commonplace, was more likely to have been correct in his assessment of the level of AdBlue.

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6 T/2018/67

23. Neither am I satisfied that the [NAME] would have mistaken a cheat device for a tracker.

24. It was further argued for DJ that there was no evidence as would justify the recording of an S marked prohibition for the vehicle, in the absence of an emissions test outcome demonstrating that the device fitted was in fact overriding the emissions control system. The [NAME] accepted that no such test had been undertaken. I do however find it more likely than not that on the evidence before me that the fuses had been removed and made inactive on the vehicle’s emissions control system. The emissions control system had therefore been modified unlawfully and the AdBlue system had been overridden. Whilst it is not possible to say to what extent the fitting of this device made this vehicle more polluting with NOx particulates than it would otherwise have been, if the AdBlue system had been operative, I am satisfied it will have had such an adverse effect.

25. I do not however find that the evidence supports the contention that DJ fitted the AdBlue device, although I do find he failed to have in place arrangements at that time that would allow him to check consumption of AdBlue, and therefore to provide a warning that there had been some interference with the emissions control system. I find it to be inherently unlikely that the device was fitted after the removal of the vehicle from the DJ licence and its addition to the [NAME] licence. I infer that the device was fitted during DJ’s ownership of the vehicle. The “S” marked prohibition stands recorded against the DJ licence. I was not told of any attempt to have it instead attached to the [NAME] licence.

26. I further find him to be culpable in that he failed adequately (or at all) to manage and control the loaning arrangements for the vehicle, at a time when, on his own evidence, the vehicle had already been sold for export. This failure is directly linked to the said vehicle being passed on with the unlawful device still fitted to it, which is entirely unacceptable.

27. [NAME] claimed there was no link between his business and the business of [NAME], either practically or in any family sense. It was said by him that [NAME] ran that operation (as was also claimed by DJ). [NAME] denied any part in the recruitment of [NAME] as the [NAME] for the [NAME] licence, which had been alleged by [NAME].

28. DJ agreed he had loaned vehicles to [NAME] but had stated in evidence that he had no role in his appointment of [NAME], nor specifically in paying him to act as [NAME] on the [NAME] licence. Bank statements held on the licensing system which had been located by me when reviewing his financial standing, and which were produced to him during the hearing, showed that monies had been paid from DJ’s bank account to [NAME]. They were marked as follows:

“[NAME] – ref CPC” on 14 November 2014,

“[NAME] – ref [NAME]” on 12 December 2014.

These were shown to DJ. DJ only then offered that from time to time over a period that [NAME] had asked (DJ) to pay [NAME] sums of £100 for his services, as a matter of convenience for [NAME]. He said that this would have happened on “8 or 9 occasions”.

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7 T/2018/67

29. A letter dated 7 August 2018 purporting to be written from an address in Malta by [NAME] was produced by DJ and [NAME]. The letter referred to his business relationship with DJ and included the following statements:

“[…] I began to hire my trucks from him (DJ). It made business sense as we both benefited from the deal”;

and

“I hired [NAME] myself as a transport manager on behalf of my mother [NAME] who was the operator of the licence”;

30. [NAME] gave evidence that it was [NAME] and DJ whom he had had contact with about his appointment as [NAME] for [NAME]. He said he had never met [NAME] (or [NAME]) and had believed that he was working for the Jemmetts and not for her. In support of that contention, he produced an original business card with the legend “[COMPANY]”, which was in the name of DJ and with DJ’s contact details on it. He said he recalled the arrangement made for him to receive £100 per month for his services, which had continued to be made since he was taken on in October 2013. The business card carried the address Minerva House, [ADDRESS], Swinton, Manchester very close to where the meeting was said (by him) to have been held, at [ADDRESS], Pendlebury, Swinton.

31. I find that the evidence of [NAME] is credible, it is supported by documentary evidence and I accept it. He appreciates that his repute is at risk, since he had previously admitted he was not actually carrying out the [NAME] role but taking the money. Whilst he wishes to protect his repute, he had little to gain from being other than open and honest about the circumstances of his appointment. The evidence shows he has been paid for his role by DJ, and DJ admitted other payments beyond those listed on the bank statements on file. The specific entries in the bank account of DJ to “[NAME]” (DJ’s trading name) and to “CPC” do not support the contention that he was making payments for another person ([NAME]) and that [NAME] would be reimbursing him for the transaction. I find that it is more likely than not that DJ was probably operating the licence of [NAME], as if his own. It is not possible to describe the extent of his particular role in this arrangement but consistent with my earlier findings on an intermingling of activity as far as the licences of DJ and [NAME] were concerned, I conclude that similar circumstances are more likely than not the have existed in respect of the [NAME] licence.”

12. Having reviewed the evidence and background and having reached relevant factual findings, the [NAME] then set out and justified his decision concerning the appellant in this way:

“51. In respect of the licence of [NAME], I make findings in accordance with Section 26(1)(b), (c) (iii), (ca), (e), (f) and (h) of the Act.

52. I further find in accordance with Section 27 that there is a lack of professional competence. There has been no active [NAME] on the DJ licence for an extended period, and no attempt until the recent assistance form [sic] [NAME] to put things right, or any attempt to notify that state of affairs

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8 T/2018/67 and do something about it. [NAME] has remained the [NAME] even at the date of the Public Inquiry. It is of course beholden on operators to notify such material change, to appoint a suitable replacement and a failure to do so prejudices trust and confidence.

53. In reaching conclusions about whether DJ’s good repute is maintained, I have again sought to balance the positives and negatives.

54. The negatives referred to in my findings in paragraphs 15 to 38 much outweigh any positives that may be offered up for DJ. Trust is further undermined by the record of non-compliance reflected in an Amber/ Amber Operator Compliance Risk Score (OCRS), which emphasises the issue of 3 “S” marked prohibitions in an 8-month period, together with a sub-standard MOT pass rate.

55. I struggle to describe many positives to the credit of DJ. He was however straightforward (except and critically in relation to the position of [NAME]) at the hearing. The most concerning aspects of the operation of this licence have indeed come in recent time; [NAME]’ description of the licence being hitherto largely off the radar is not inaccurate.

56. The belated application for a new licence, but with which DJ is directly concerned, in part demonstrates the acceptance that this licence is not appropriately continued and represents some level of positive acknowledgement of this state of affairs.

57. I conclude that his repute has been lost, since when I ask myself the Priority Freight question, I conclude I cannot be satisfied that this operator will be compliant in the future. My trust and confidence that the operator will comply with the requirements contained in undertakings under the licence has been fatally undermined.

58. So much so that when I ask myself the [NAME] question: Is the conduct of this operator such that it ought to be put out of the business? I conclude that it is appropriate and proportionate to answer that question in the affirmative, given the findings made in the balancing exercise undertaken. I find repute is lost. The prohibitions bring into question road safety, the manner in which the licence has been operated undermines the principles of fair competition in the business, and the involvement of DJ in the sham [NAME] arrangements undermines the principles and standards of the licensing regime.

58. This operator’s licence will be revoked with effect from 23:59 hours on 19 October 2018. This short period during which the licence may be continued in order to allow an orderly closedown of the business.

60. I have gone on to ask myself whether this is a case where disqualification should follow: I conclude that such a direction is appropriate and that his exclusion from the industry as a sole trader, partner or director is necessary. The evidence before me demonstrates he is not an appropriate appointee as the director of a [NAME]. The period of disqualification is set at 18 months.”

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9 T/2018/67 The [NAME] Appeal to the Upper Tribunal

13. Brief written grounds of appeal were set out in completed form UT12. What was said was supplemented in a document headed “Updated Grounds of Appeal” and then in a further document headed “Amended/ Perfected Grounds of Appeal”. Essentially, what was contended may be summarised as follows:

Ground 1 – The appellant has dyslexia. The [NAME] was aware of that but made no allowance for it in his assessment of the veracity of the [NAME] evidence and in relation to his decision generally.

Ground 2 – The [NAME]’s findings concerning the AdBlue issue were unreasonable ones. That is because the [NAME] failed to consider attaching less or no weight to the evidence of [NAME] on the basis that that evidence was given via telephone link rather than by way of personal attendance at the [NAME]; because the [NAME] failed to have regard to an apparent indication given by [NAME] that the [NAME] protestations of innocence (or aspects of them) might be correct; and, again, because of the failure to make an allowance with respect to the [NAME] dyslexia.

Ground 3 – The [NAME] had, on at least two occasions when explaining his decision, effectively reversed the burden of proof to the disadvantage of the appellant.

Ground 4 – The [NAME] acted unfairly and in breach of proper procedures by dealing with [NAME]’s case along with that of the [NAME] or in allowing the evidence of [NAME] to be heard as part of the [NAME].

Ground 5 – The [NAME] erred in approaching the assessment of [NAME]’s evidence from the perspective that “he had little to gain from being other than open and honest about the circumstances of his appointment”. In fact, [NAME] had everything to gain in trying to protect his repute by apportioning blame in the direction of the Appellant.

Ground 6 – The [NAME]’s ultimate conclusions regarding loss of repute, lack of professional competence, disqualification and revocation were unfair and/ or unreasonable.

14. Before us, [NAME] explained that [NAME] had now been granted a new Operator’s Licence. As to the issues surrounding the [NAME] dyslexia, the [NAME] ought to have noted the fact he has dyslexia in his written reasons and ought to have explained “what he made of it”. If he had thought the dyslexia made no difference he should have said so and should have said why he thought that. The transcript suggests that, at one point, the [NAME] had been guilty of “unfortunate sarcasm” with respect to the [NAME] dyslexia and the impact it had upon him. [NAME] accepted that there had been no request made of the [NAME] for him to make any reasonable adjustments in consequence of the [NAME] dyslexia and accepted that it had not been raised by his representative at the [NAME].

15. With respect to the AdBlue point, whilst [NAME] did not seek to rely upon very much or anything contained in the decision of the Upper Tribunal in [COMPANY] v Secretary of State for Transport [2020] UKUT 0005 (AAC). Rather, he argued that the [NAME] had simply got matters “wrong factually”. The key witness regarding these issues had been [NAME]. Giving evidence by way of a telephone link is unsatisfactory but the [NAME] did not acknowledge that in his reasoning. He should have expressly considered whether the evidence, in consequence of its having been given by way of a telephone link, should carry less weight and should have specifically explained his reasoning on the point. [NAME],

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10 T/2018/67 though, accepted that no objection had been made to [NAME] giving his evidence by way of a telephone link.

16. As to other matters, it was right to say that the [NAME] had effectively reversed the burden of proof. The [NAME] had failed to reach a clear view with respect to whether or not the appellant had been dishonest with respect to the AdBlue emulator device. It had been essential for such a finding to be made. The appellant had had a good compliance record for a number of years. That was not considered by the [NAME] when arriving at his ultimate conclusions. Other than that what [NAME] had to say did not go beyond or significantly beyond what had been said in writing.

Why we have decided to dismiss this appeal

17. Paragraph 17 (1) of Schedule 4 to the Transport Act 1985 provides:

“The Upper Tribunal are to have full jurisdiction to hear and determine all matters (whether of law or of fact) for the purpose of the exercise of any of their functions under an enactment relating to transport”.

18. The Upper Tribunal’s jurisdiction was examined by the Court of Appeal in [COMPANY] and [NAME] v Secretary of State for Transport [2010] EWCA Civ 695. The court applied [NAME] 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.”

19. That is the approach which we have followed in deciding this appeal.

20. As to what we have called Ground 1, we accept the appellant has dyslexia. That is a condition capable of impacting upon individuals in a surprisingly large range of ways. We accept that there will be cases where it will be appropriate or necessary for a [NAME] to make reasonable adjustments in order to ensure fairness at a [NAME] where issues are raised regarding compliance with the regulatory regime by someone who has the condition. But here, the appellant had competent legal representation at the [NAME]. As [NAME] acknowledges, no request for the making of any form of adjustment was made either prior to or at the outset or at any point during the [NAME]. We have not been told, with any degree of precision, how the appellant says the [NAME] process was unfair as a result of his dyslexia. We have not been told, at any stage, what information the appellant might have given had adjustments been made which he did not, in fact, give. We have not been told, with any degree of precision, how his oral evidence at the [NAME] might have differed had any adjustments been made. We are not able to detect for ourselves anything in the [NAME] transcript which suggests the [NAME] participation at the [NAME] was adversely impacted. We think that if there had been any need for adjustments such would have been raised, on the [NAME] behalf, by his competent representative. We note that, before us, [NAME] suggested that the solicitor might have had a difficult task and (we think this is the suggestion) might have been compromised by his having to represent both the appellant and his brother. But we do not see that for ourselves. As to the reference to “unfortunate sarcasm” that rests upon a short exchange between the [NAME] and the appellant. We shall set it out. This is what is recorded as having been said:

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“Q. Scrapped or exported?

A. They, they took the yellow bit because there were a what do you call it, an exporter or dealer, so I assume they just take…get to take the yellow bit. Obviously paperwork’s not my strong point.

Q. Mmmm. Well it may not be your strong point but also I need to remember if I am writing to you I need to give an extra week because you might not be opening it?

A. Yeah. E-mails I tend to do straight away. I tend to read them of cos my computer reads em. And then sometimes if I get a lot of stuff through it takes me a bit to get through it cos obviously its not –

Q. Well I understand all of that and I take that into account but I would have thought that if you do have those problems you would want important letters to you opened immediately, would you not?

A. I suppose so but I just…I always open my own letters so…”

21. [NAME], before us, stood by his written assertion that such represented a sarcastic tone on the part of the [NAME]. We are not able to agree with that. In our view the [NAME] was simply acknowledging what the appellant himself had said to the effect that paperwork was not his strong point and recognising that a consequence might be a delay in responding to mail coupled with a suggestion that, in such circumstances, it might be appropriate for him to have arrangements in place so that important letters are opened and dealt with promptly. So, we have to disagree with [NAME] about that. For all of the above reasons we conclude that what we have called Ground 1 does not have force.

22. As to what we have called Ground 2, we note that [NAME] suggested, in oral submissions, that the [NAME]’s findings regarding the AdBlue issue were of pivotal importance in the sense that, had he not resolved such matters against the appellant, it was inconceivable that he would have revoked and disqualified even if he had thought some lesser form of sanction would be appropriate. We do not agree with that suggestion. There were, putting everything together, a number of negative findings from the [NAME] perspective, regarding a number of aspects of his operations. There was, for example, the intermingling of his operation and that of his brother which the [NAME] said in unchallenged findings “went far beyond the description of the sort of support that father and son would likely offer to each other, when each was engaged in a similar field of activity”. There was, very importantly in our judgment, the finding that there was no professional competence because there had not been, for some considerable time, an active [NAME]. There had been, again importantly in our judgment, the adverse findings to the effect that the appellant was “probably operating the licence of [NAME], as his own”. Indeed, in looking at the part of the [NAME]’s reasoning regarding how he had come to his decisions on revocation and disqualification, it is the lack of an active [NAME] (paragraph 52 of the written reasons) and the prohibitions during a short period of time coupled with a substandard MOT pass rate (paragraph 54) which are highlighted. In our view, therefore, the negative AdBlue findings did not play a significant role in the [NAME]’s reasoning as to his ultimate conclusions and, indeed, we would go so far as to suggest that his conclusions would have been the same even if he had resolved those AdBlue matters in the [NAME] favour.

23. In these circumstances it is not necessary for us to say any more about Ground 2 but we will do so. One of the major points taken in this regard was that the evidence of [NAME] had been given via a telephone link. It is significant, in our view, that the [NAME] representative did not object to evidence being given in that way. We would accept, speaking generally, that face-to- face evidence is to be preferred but there does not appear to have been any difficulty with respect to the giving of evidence in this way. There is no explanation as to why, for example, cross-examination of [NAME] (which was conducted by the [NAME] competent representative at the

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12 T/2018/67 [NAME]) might have been in any sense unsatisfactory or ineffective simply because of the mode of communication. There is nothing we can detect in the transcript which suggests that the giving of evidence by this means was inhibited in any way. There is nothing to suggest, in looking at the practicalities, that [NAME] was unable to hear what was being asked of him or that what he said could not properly and adequately be heard by the participants at the [NAME]. As to what seems to be presented as something of a concession on the AdBlue issue said to have been made by [NAME], we do not, for ourselves, detect anything more than a suggestion on his part that looking inside AdBlue tanks might not, of itself, adequately underpin adverse findings. That is a rather limited observation. The criticism is that the [NAME] did not factor this part of [NAME]’s evidence into his reasoning as set out in his written reasons. But we cannot see that he was required to address each and every aspect of the evidence which he received and we cannot see that that particular item of evidence, of itself, was so significant as to demand reference to it and an analysis of it in the written reasons. We have already dealt with the dyslexia point which was also raised with respect to this ground. As to dishonesty, the [NAME] did not say, in terms, that he was finding the appellant to have been dishonest. He could have gone on to consider that more if he had wanted to though we do not accept, as [NAME] seemed to suggest, that what was said in the [NAME] case effectively imposes a duty upon a [NAME] to decide definitively whether there has or has not been dishonesty in circumstances where an emulator has been fitted and found. The point the [NAME] was making in this case was really that the presence of the emulator in his vehicle indicated a failure to put arrangements in place which would enable him to check the consumption of AdBlue and therefore to provide him with an indication that there had or might have been interference with the emissions control system (paragraph 25 of the written reasons). We find this ground of appeal not to be made out.

25. As to what we have called Ground 3, [NAME] argues that the [NAME] effectively reversed the burden of proof to the [NAME] detriment. He has in mind paragraphs 22 and 23 of the [NAME]’s written reasons. We do not, however, detect any effective reversal of the burden of proof for ourselves. The paragraphs referred to address an aspect of the AdBlue issue. The [NAME] was explaining that he preferred the evidence of [NAME] to that offered by the appellant on a discrete issue as to whether the device spotted in the relevant vehicle was a cheat device or, as the appellant had argued, something more benign. Simply saying that the traffic examiner’s evidence was preferred on the point does not amount to reversing the burden of proof. Nor does his observation that evidence provided by the appellant as to the nature of the device was unconvincing and unpersuasive. We reject that ground of appeal.

26. We shall take what we have called Ground 4 and what we have called Ground 5 together as they both involve the situation of [NAME]. We do not agree that there was unfairness in the [NAME] dealing with [NAME]’s case and the [NAME] case together. Indeed, since they were interlinked insofar as there was a reason to think there might have been an appropriate link between the [NAME] business and the licence of the individual who had employed [NAME] as transport manager, it made practical sense to deal with the matters together. It has not really been explained to us how any unfairness had arisen or why there might have been any unfairness in doing things this way in the first place. It was perhaps unfortunate for the appellant that [NAME] gave evidence at the [NAME] because that evidence was one amongst a number of things which damaged his case. But that does not begin to indicate any form of procedural unfairness. In terms of the [NAME]’s analysis of [NAME]’s evidence, he offered what is in our view a careful explanation as to why he preferred [NAME]’s explanation to that given by the appellant regarding payments of £100 per month from the appellant to [NAME]. The relevant part of the written reasons is the passage from paragraph 27 to 32. It is set out above. The [NAME], of course, had the opportunity of hearing the oral evidence of each of them on the point, something which we have not had. [NAME] says that the [NAME] was simply wrong in suggesting that [NAME] had “little to gain” from being honest about how he had come to be appointed as [NAME] in relation to the licence in the name of [NAME]. Indeed, [NAME] suggests that the opposite was the case and that [NAME], as he puts it, “had everything to gain in trying to protect his repute by placing the responsibility for what had happened on the appellant”. Possibly, on

[2020] UKUT 0144 (AAC)

13 T/2018/67 one view, what the [NAME] had to say went slightly too far. But [NAME]’s credibility was damaged, in any event, by his not having carried out the role of [NAME] on that licence. He had acknowledged his failing in that regard. As such, whether he had been appointed by [NAME] or whether he had been appointed by the appellant was not a matter of real significance with respect to his already significantly damaged credibility. That is, we think, the point the [NAME] was making and it is, viewed from that perspective, a fair one. We do not consider this ground to be made out.

27. Ground 6 is really a general assertion regarding unfairness and the proportionality of the decisions taken by the [NAME] with respect to the appellant. But, in our judgment, none of the [NAME]’s findings which underpinned his conclusions can be said to be plainly wrong. He carried out the balancing exercise required when considering revocation. Against the background, and the factual findings, it cannot realistically be contended that either the decision to revoke or the decision to disqualify could be said to be unreasonable, unfair or disproportionate. So, again, we reject this ground of appeal.

28. In light of the above we do not detect any misdirection or misapplication of the law. We do not detect any procedural unfairness. We cannot see that the [NAME] made findings of fact which were plainly wrong or that, having made those findings, he was plainly wrong with respect to his decision to revoke the licence and his decision to disqualify the appellant. There is nothing in the material before us nor in any argument put to us which impels us to reach a different conclusion.

29. There is a final point to make. It has taken a long time for this appeal to be concluded. That is largely because matters were stayed for some considerable time pending a decision in the [NAME] case cited above.

Conclusion

29. This appeal to the Upper Tribunal is dismissed.

Signed

M R Hemingway

Judge of the Upper Tribunal

Dated: 30 March 2020