Upper Tribunal Upholds Refusal of Restricted Operator's Licence

1

Appeal No. T/2018/10 NCN: [2018] UKUT 353 (AAC)

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER ([NAME])

ON APPEAL from the DECISION of THE TRAFFIC COMMISISONER FOR THE NORTH WEST OF ENGLAND ([NAME]) Dated: 6 February 2018

Before:

Mr E. Mitchell Judge of the Upper Tribunal [NAME] Member of the Upper Tribunal [NAME] Member of the Upper Tribunal

Appellant: [redacted]

Attendances:

[NAME], solicitor, of [NAME] for [NAME] at: Breams Buildings, Field House, Central London Date of hearing: 9 May 2018 Date of decision: 14 October 2018

[2018] UKUT 353 (AAC) 2 T/2018/10

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal is DISMISSED. The Upper Tribunal decides that the decision of Mr [NAME], taken on 6 February 2018, contained neither error of fact nor law.

The Upper Tribunal DIRECTS that this decision takes effect at 23.59 hours on the 28th day after this decision is issued (not counting the day of issue). At that time and date, [NAME]’s application for a restricted licence under the Goods Vehicles (Licensing of Operators) Act 1995 will be finally disposed within the meaning of section 24(9) of that Act. Concurrently, the interim restricted licence granted to [NAME] by Mr [NAME] with effect from 16 February 2017 will terminate by operation of section 24(6) of the 1995 Act. This direction is made in order to enable [NAME] to close down his transport operation in an orderly manner.

SUBJECT MATTER:-

Application for restricted [NAME]’s licence

CASES REFERRED TO:-

[COMPANY] v Secretary of State for Transport [2010] EWCA Civ 695, [2011] RTR 13;

Subesh & ors v. Secretary of State for the Home Department [2004] EWCA Civ 56, [2004] INLR 417;

Assicurzioni Generali SpA v. Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577.

REASONS FOR DECISION Background

1 [NAME] once held a restricted [NAME]’s licence granted to him under the Goods Vehicles (Licensing of Operators) Act 1995 (“1995 Act”). The licence related to [NAME]’s operation of a skip hire business. According to the [NAME]’s

reasons for his decision in the present case, that licence expired on 31 October 2016 because [NAME] failed to renew it.

2. On 16 December 2016, [NAME] applied to the [NAME] for a new restricted [NAME]’s licence. The application sought authority to operate six vehicles. With effect from 16 February 2017, the [NAME] for the North West of England, [NAME] (hereafter “the [NAME]”), granted an interim licence pending determination of the application for a restricted licence. The interim licence authorised the use of only four vehicles. Upon granting the interim licence, the [NAME] required [NAME] to give an undertaking to arrange, within four months, an independent audit of his operation.

3. [NAME] subsequently amended his application so that it sought authority to operate four, rather than six, vehicles.

4. Following a public inquiry (PI) held on 23 January 2018, the [NAME] decided on 6 February 2018 to refuse [NAME]’s licence. At the PI, [NAME] was represented by [NAME]. Rather than set out the [NAME]’s extensive reasons for his decision, they are dealt with below insofar as they are challenged on this appeal.

5. [NAME] now appeals to the Upper Tribunal against the [NAME]’s decision.

The [NAME]’s decision

The relevant evidence

6. The [NAME] summarised [NAME]’s operation’s regulatory history, which he described as “lengthy”:

- 31 October 2003: curtailment of restricted licence to authorise use of three, rather than six vehicles, following PI findings of breach of regulatory prohibitions and licence undertakings;

- 22 October 2004: formal warning recorded by a traffic [NAME], following PI findings of breach of regulatory prohibitions and maintenance shortcomings;

- 28 March 2011: PI called due to apparently unsatisfactory maintenance inspection but vacated following [NAME]’s agreement to a curtailment of his restricted licence to authorise use of four vehicles;

- 28 June 2013: curtailment of restricted licence to authorise use of three vehicles following PI findings of breach of regulatory prohibitions and an unsatisfactory maintenance inspection.

7. As described in the [NAME]’s reasons, the evidence given at the PI connected with [NAME]’s failure to renew his previous restricted licence included:

- [NAME] accepted that he failed to renew in time. He did not believe he received a reminder but “did not offer this as an excuse”. [NAME] said a [NAME], who had been “managing the licence”, failed to note its expiry. [NAME] also said that the operation was a “joint enterprise” between himself and [NAME]; people assumed [NAME] part-owned the business;

- [NAME] said he “never let go” of supervising [NAME] but also gave evidence that “I got to the point where I never needed to check up on him”;

- According to [NAME] was dismissed in December 2017 although the [NAME] noted the absence of documentary confirmation;

- [NAME] said [NAME] failed to discharge his duties to ensure that: vehicles were “up to scratch”; preventative checks were carried out; and paperwork kept up to date. [NAME] was once given a written warning; the [NAME] again noted the absence of documentary confirmation;

- [NAME] said he first learnt that his licence had expired when informed by the Office of the [NAME], by letter “in December 2016”;

- [NAME] accepted that, between expiry of his former licence on 31 October 2016 and “December 2016”, he operated without a licence. But he only used one vehicle because trade was quiet;

- [NAME] conceded that he still operated a large goods vehicle after receiving the December 2016 notification that his licence had expired. However, he only

collected skips that were already hired out. He did not take on any new business. The only explanation [NAME] could give for this admitted unlawful use was “business need”.

8. The evidence given at the PI, or referred to in the [NAME]’s reasons, in relation to [NAME]’s interim licence, and the independent audits he undertook to arrange, included:

- [NAME] did not, found the [NAME], comply in a timely fashion with his undertaking to arrange an independent audit. The audit report was submitted late. It was also “wholly inadequate” extending to only a single page, which covered few of the relevant areas, and was produced by a maintenance contractor unqualified to carry out audits;

- A subsequent independent audit was carried out by a properly-qualified individual, [NAME] of [NAME], but not until 9 September 2017. [NAME] concluded that “the systems were in place but require more time spending on the management systems”;

- [NAME] provided another report dated 19 January 2018, following a further audit, which stated that inspection frequencies had been met since the last audit and the systems were satisfactory. This was despite no roller brake testing having been carried out, between 9 September 2017 and the date of the PI, and continued use of outdated inspection records;

- [NAME] said that, at some point in 2017, maintenance was brought in- house, to be done by himself and [NAME]. He could not explain why he failed to notify this change to the Office of the [NAME]; he said he did not know this was required. [NAME] accepted that neither he nor [NAME] were qualified mechanics;

- [NAME] undertook to carry out quarterly roller brake testing in the future. He accepted testing deficiencies were not addressed promptly enough after the September 2017 audit but “expressed readiness to obtain further audits and to share the outcomes with the [NAME]”.

9. The evidence given at the PI, or referred to in the [NAME]’s reasons, about use of a vehicle when [NAME]’s operation was unlicensed included:

- [NAME]’s September 2017 audit report noted that the odometer for one of [NAME]’s vehicles (“the vehicle”) indicated that, between 6 June 2016 and 8 March 2017, it travelled 8,268 km. For part of this period (31 October 2016 to 16 February 2017), [NAME] held no licence. The report said [NAME] was told that the vehicle was used for non-commercial purposes and was on loan to another company. At the PI a [NAME], described as the operation’s current transport administrator, gave evidence that the loan explanation was given by [NAME]. [NAME] said the same at the PI;

- [NAME] gave evidence that the vehicle was “the spare wagon” used around his farm, and was typically used by [NAME]. However, he later conceded that this would not account for the mileage recorded between June 2016 and March 2017. Subsequently, [NAME] further conceded that the vehicle was not the ‘spare wagon’;

- The [NAME]’s reasons note that [NAME]’s explanation differed from that recorded in [NAME]’s report. [NAME] later conceded: “to be honest, I was trying to squeeze out of the trouble, as I didn’t know the answer to the 8,000 km” and “sort of” made something up. [NAME] accepted, in the words of the [NAME], that “the unaccounted for mileage could only have been the result of vehicle movements through the [NAME] business but with a very small amount of mileage at the farm”. [NAME] also gave evidence that he did not tell lies and “claimed that someone else had suggested to him that the vehicle had been loaned”. It seems that [NAME]’s final position was that he simply could not explain the mileage;

- [NAME] went on to give evidence that [NAME] must have used the vehicle and destroyed the records. According to the [NAME]’s reasons, [NAME] could not explain why [NAME] should have done this nor why his own checks failed to spot such unauthorised use;

- “he further admitted that as part of his backtracking, he had created the VOR [vehicle off-road] documentation [for the vehicle] but only at the point at which it had been pointed out to him that there was unaccounted mileage”.

The [NAME]’s findings and conclusions

10. The [NAME] made adverse findings about [NAME]’s capability and character:

- [NAME]’s evidence was “unimpressive, confused and contradictory” and “he appeared to be creating new explanations as he went along, to seek to explain away questions he was unable to answer”. There was “a clear attempt to mislead me as to the true extent of his role in the skip hire business”;

- [NAME]’s lengthy industry experience, he lacked knowledge and understanding of the basic requirements of a licence holder. His failure to renew his previous licence was due to basic administrative failures, inadequate commitment to compliance and a failure to supervise and manage the staff member ([NAME]) now blamed for the [NAME]’s shortcomings.

11. In relation to certain other individuals who featured in the case, the [NAME] found:

- The allegations about [NAME] were not substantiated. They were pure speculation and carried no evidential weight;

- [NAME]’ evidence was credible and accepted by the [NAME].

12. In relation to the significant issue concerning use of the vehicle, the [NAME] found:

- [NAME]’s operation used a vehicle unlawfully between 31 October 2016 and 16 February 2017. From December 2016, [NAME] knowingly operated unlawfully and “thereby placed the needs of his business before the requirement for compliance with the law”;

- [NAME] prepared the vehicle’s VOR record for June 2016 to March 2017 after the event without exercising care as to its accuracy. This was done to “[obscure] the absence of preventative maintenance records” for a period during which the vehicle undertook significant mileage. During this period, it was more likely than not that the vehicle was not formally maintained in accordance with licence undertakings given by [NAME];

- [NAME] “lied when supporting the submission that the vehicle had been loaned”. His dissembling at the PI forfeited any credit he might have been given for initially “admitting the falsehood”;

- [NAME] either supplied the untrue loan explanation or acquiesced in it by allowing it to be included within an audit report to be put before a PI when he did not know or believe it to be true;

- [NAME]’s contention that he could not in fact explain the vehicle’s unaccounted mileage was “deeply concerning” and supported the [NAME]’s view that [NAME] had abrogated his responsibilities as licence holder.

13. Other adverse findings made by the [NAME] included:

- When the business was operating under an interim licence, [NAME] failed to notify a material change to maintenance arrangements, which involved substituting a qualified external contractor for in-house staff without any formal qualifications;

- [NAME]’s application for a restricted licence was materially false, concerning arrangements for management of drivers’ hours and tachograph compliance. This was likely to be due to [NAME]’s administrative shortcomings and inadequate commitment to compliance;

- [NAME] failed effectively to act on the recommendations of the September 2017 audit, which to some degree negated the credit that might otherwise have been given for obtaining advice and guidance;

14. The [NAME] accepted that certain positive factors went to [NAME]’s credit:

- The operation had the necessary financial standing;

- The appointment of [NAME] as ‘transport administrator’ was encouraging and he had the potential to become a competent administrator. But this was not a wholly positive factor. [NAME] was still developing his expertise and, in so doing, could not rely on [NAME] for informed advice and guidance.

Furthermore, errors in the application for a restricted licence would have been made by [NAME];

- [NAME] openly accepted that, for a time, the operation was carried on unlawfully;

- [NAME] obtained professional legal and transport advice and demonstrated intent to arrange further independent audits. Both he and [NAME] had also completed an [NAME]’s licence awareness course;

- Compliance had improved between the first and second [NAME] audits;

- There were no adverse regulatory findings for the period when [NAME] was operating under an interim licence.

15. Before drawing the strings of his reasoning together, the [NAME] directed himself:

(a) in [COMPANY] [2010] UKUT 367 (AAC), the Upper Tribunal held, in the [NAME]’s words: “those who are allowed entry [to the haulage] industry must satisfy the [NAME] of their good repute or fitness”. In addressing those matters, a [NAME] should “be awake to what the public, other operators, and customers and competitors alike would expect of those permitted to join the industry that they will not blemish or undermine its good name, or abuse the privileges it bestows”; and

(b) the question for determination in [NAME]’s case was whether he met the test of fitness.

16. The [NAME] decided that [NAME] was unfit to hold a restricted licence. He could not be trusted to run a compliant operation in the light of: his poor regulatory history; his deliberate operation of vehicles without a licence (“a most serious matter”); his failure to be straightforward at the PI, which included an admission that he was prepared to lie or mislead to ‘get out of a squeeze’; and his creation of records after the event.

17. The [NAME] asked himself whether the appointment of [NAME] meant “compliance could be materially different” but answered in the negative given “his

considerable inexperience in what would remain [[NAME]’s] sole trader business”. The [NAME] refused [NAME]’s application for a restricted licence.

18. The [NAME]’s decision was given on 6 February 2018 but he directed that his refusal would take effect in 28 days to allow for an orderly closedown of the business. Ordinarily, a [NAME]’s refusal to grant a licence causes a linked interim licence to terminate. However, [NAME]’s appeal to the Upper Tribunal maintained the interim licence pending determination of the appeal (see sections 24(6) and 24(9) of the 1995 Act). This explains the direction given above, after our decision, [NAME] having submitted at the hearing that, if [NAME] lost his appeal, he should have 28 days to wind down his business.

Grounds of appeal

19. [NAME]’s written notice of appeal, drafted by [NAME], advances the following arguments.

Ground 1 – failure to give appropriate weight to / credit for positive features of [NAME]’s case

20. [NAME] accepts he has an adverse regulatory history. However, the [NAME] failed to consider positive steps taken after a PI in 2013 such as a “marked improvement in the driver defect reporting system”. These improvements went directly to the question whether future compliance could be expected but did not feature in the [NAME]’s decision-making.

21. [NAME] carried out two compliance audits. The [NAME] failed to give “appropriate weight and credit” to improvements made between the two audit reports, in particular the view expressed in the second report that “the [NAME] does have systems in place to comply with the requirements of the [NAME]’s licence and they are operating satisfactorily”.

22. The [NAME] failed to “consider the wider picture of compliance” and did not give “appropriate weight” to [NAME]’s compliance with undertakings carried forward from his former licence. These factors played a part in the [NAME] wrongly concluding that [NAME]’s operation would not be regulatory-compliant in the future.

23. The [NAME] paid no regard to the difficulties caused by [NAME] whose role, until his dismissal in December 2017, was to ensure the operation’s regulatory compliance.

Ground 2 – unreasonable interpretation of evidence

24. [NAME] concedes that he could not explain the absence of records for the vehicle during the period when his operation was unlicensed. Two witnesses, one of whom the [NAME] expressly found to be credible, gave evidence that [NAME] came up with the explanation that the vehicle was ‘off road’. Despite that, the [NAME] found that [NAME] was the source of the ‘off road’ explanation and gave no reason for refusing to accept the evidence of a credible witness;

25. The [NAME]’s finding that [NAME] attempted to mislead him about his role in the operation was unsupported by the evidence. The [NAME] misunderstood the evidence about [NAME]’s role in the operation.

26. The [NAME]’s treatment of the evidence was inconsistent. [NAME]’s tachograph evidence was described as false but the same evidence given by a [NAME] was considered simply an error.

27. The [NAME]’s negative view of in-house maintenance by unqualified fitters failed to take into account that, in 2013, in-house fitters were used when “there is no adverse history”.

28. The [NAME]’s reasons often refer to the absence of corroboration for [NAME]’s evidence. In the absence of contrary evidence, [NAME]’s evidence should have been treated as the “best evidence”. Further, the [NAME] failed to request supporting evidence during the public inquiry. To cast doubt on [NAME]’s oral evidence was therefore “wholly unfair”.

29. [NAME]’s written notice of appeal further argued that the [NAME]’s approach was legally flawed because he treated [NAME] as an applicant rather than an interim licence holder. At the hearing, however, [NAME] formally withdrew this ground. A sensible decision.

[NAME]’s case as developed at the hearing

30. At the hearing before the Upper Tribunal, [NAME], for [NAME], argued:

(a) In 2016, [NAME] did not receive the usual letter warning him that his restricted licence was due to expire. In response to our questions, [NAME] conceded that the [NAME] made no finding of fact to this effect but he argued it should be inferred from the absence of any notification letter in the [NAME]’s bundle;

(b) When informed that his licence had expired, [NAME] promptly applied for an extension and, when refused, applied immediately for a new restricted licence. The [NAME] ought to have given him credit for this;

(c) [NAME] reiterated that [NAME] accepted his operation was unlicensed between October 2016 and February 2017 but his evidence to the public inquiry was that, during this period, he took on new business and only recovered skips that had previously been hired out;

(d) The ‘heart of the case’ was the [NAME]’s finding that [NAME] could not be trusted to comply with regulatory requirements. However, the evidence principally relied on by the [NAME] – apparent extensive use of a vehicle during the unlicensed period – was supplied by [NAME]. In other words, he supplied the evidence that harmed his case. At the PI, [NAME] gave honest evidence that he could not explain the vehicle’s apparent use, which was not weighed in the balance as a positive feature. [NAME] did not try to make up an explanation at the public inquiry. This undermined the [NAME]’s finding of dishonesty;

(e) [NAME] accepts that records indicate the vehicle travelled some 8,000 km during a period for much of which his operation was unlicensed. However, it had proven impossible at the PI to establish relevant facts about the vehicle’s use. [NAME] argued the most plausible explanation was an incorrectly completed VOR notice. However, he confirmed, in response to our questions that this was not relied on before the [NAME]. We can reject this argument at this stage in our reasons. Clearly, an explanation that was not relied on before the [NAME], and appears to be [NAME]’s own take on the evidence, cannot show any error of fact or law in the [NAME]’s decision; • (f) The [NAME] wrongly refused to accept the ‘[NAME] explanation’ for the operation’s regulatory shortcomings because it was not corroborated. There is no requirement in law for corroboration in PI proceedings before a traffic [NAME];

(g) at the hearing [NAME] also developed a legal argument which featured little in [NAME]’s notice of appeal. If it is necessary to do so, we amend the grounds of appeal to include this and any other new arguments advanced at the hearing. [NAME] argues as follows:

• the licence criteria for restricted, as opposed to standard, licences are significantly different. The restricted licence criteria, in section 13B of the 1995 Act, require an individual to be “fit” to hold a licence. The criteria for restricted licences include no general requirement for good repute nor any general test of good conduct. These are features of the standard licence regime only;

• Under section 13B of the 1995 Act, an applicant for a restricted licence may only be found unfit on one of two grounds, namely certain convictions and activities. The [NAME] approached [NAME]’s application as if it were an application for a standard licence requiring satisfaction of good repute and conduct requirements. In asking whether [NAME] could be trusted in the future to comply with regulatory requirements, the [NAME] was applying, in substance, a test of good repute. The [NAME] misdirected himself in law by assimilating fitness with to good repute.

Legal Framework

31. Section 2(1) of the 1995 Act generally prohibits any person from using a goods vehicle on a road for the carriage of goods for hire or reward, or for or in connection with any business carried on by the person, other than under an [NAME]’s licence. Contravention of section 2(1) is an offence (section 2(5)). Licences may be either standard or restricted (section 3).

32. An [NAME]’s licence may provide that no motor vehicle, other than one specified in the licence, is authorised to be used under the licence (section 5(2)(c) of the 1995 Act). [NAME]’s licences are also required to specify a maximum number of motor vehicles (section 6(1)(a)).

33. On an application for a restricted licence, a traffic [NAME] must consider whether the requirements of sections 13B and 13C of the 1995 Act are satisfied

(section 13(2)). If any requirements are determined not to be satisfied, the [NAME] must refuse the application (section 13(5)).

34. Section 13B of the 1995 Act provides that an applicant is unfit to hold a restricted [NAME]’s licence by reason of “any activities or convictions of which particulars may be required to be given under section 8(4) by virtue of paragraph 1(e) or (f) of Schedule 2” to the 1995 Act. To explain further:

• Section 8(4) requires an applicant, if required, to give to the [NAME] any information specified in paragraph 1 of Schedule 2 to the Act;

• Paragraph 1(e) refers to “particulars of any relevant activities carried on, at any time before the making of the application, by any relevant person”. Paragraph 2 defines “relevant person” to include the applicant and paragraph 3 defines “relevant activities” as: “(a) activities in carrying on any trade or business in the course of which vehicles of any description are operated; (b) activities as a person employed for the purposes of any such trade or business; or (c) activities as a director of a company carrying on any such trade or business”;

• Paragraph 1(f) refers to notifiable convictions which have occurred during the five years preceding the licence application.

35. Section 13C of the 1995 Act requires satisfactory arrangements to have been made for a range of matters such as maintenance of vehicles.

36. Criteria for granting standard and restricted licences differ. Unique requirements for standard licences include:

• The applicant must be of “good repute” (section 13A(2)(b) of the 1995 Act). In determining whether an individual is of ‘good repute’, a [NAME] may have regard to any matter but must always have regard to any relevant convictions and any other information which appears to the [NAME] to relate to an individual’s fitness to hold a licence (Schedule 3(1) to the 1995 Act);

• The applicant must be “professionally competent”, which means either holding a specified qualification or having a transport manager who does (section 13A(2)(d) and Schedule 3(8)); • The applicant must have designated a transport manager who is of good repute and professionally competent (section 13A(3)).

37. It may be seen that, while ‘unfitness’ requires an application for a restricted licence to be refused, for applicants for standard licences, ‘fitness’ is an aspect of good repute.

38. Section 46(1) of the 1995 Act authorises regulations to prescribe fees to be payable for the continuation in force of operators’ licences. The relevant regulations are the Goods Vehicles (Licensing of Operators) (Fees) Regulations 1995. Section 46(4) provides:

“If any fee or instalment of a fee in respect of the continuation in force of an [NAME]'s licence is not duly paid by the prescribed time, the licence terminates at that time.”

Why this appeal does not succeed

39. In [NAME]’s opening oral submission this was essentially a simple case. If so, that did not prevent him from identifying multiple grounds of appeal. His client cannot complain that his legal representative failed creatively to explore every possible avenue of challenge.

Whether the [NAME] treated [NAME]’s application as if it were an application for a standard licence

40. We shall deal first with the ground given most prominence at the hearing namely whether the [NAME], directly or indirectly, mistakenly applied the statutory criteria for standard licences rather than restricted licences.

41. As we have observed, fitness-type questions arise under both the restricted and standard licence provisions. Sections 13(5) and 13B of the 1995 Act prohibit the grant of a restricted licence to a person who is unfit, within the meaning of the Act. In the

case of applicants for standard licences, “fitness” is an aspect of the “good repute” requirement.

42. We do not accept that this experienced [NAME]’s reference to [COMPANY] shows that he mistakenly applied the standard licence criteria. It is true that [COMPANY] involved an applicant for a standard licence. However, the [NAME]’s summary of the decision was to the effect that that entrants to the industry need to satisfy a traffic [NAME] of their good repute or fitness. The [NAME] did not proceed on the basis that [NAME] needed to establish good repute. Immediately after the [COMPANY] reference, the [NAME] said he needed to determine whether [NAME] met the test of fitness. Next, the reasons state that the [NAME] found [NAME] to be unfit. We do not consider that the [NAME]’s sequential references to ‘fitness’ and being ‘unfit’ show that he required [NAME] to demonstrate his fitness, instead of asking whether [NAME] was unfit. The important aspect of this part of the [NAME]’s reasons is the clear finding that [NAME] was unfit, which was the correct test.

43. We also reject the argument put at the hearing that some or all of the factors that weighed against [NAME]’s application were, by their nature, matters going to good repute rather than fitness. The 1995 Act does not draw a watertight distinction between good repute and fitness-type considerations. As we have pointed out above, an integral part of the concept of good repute, as it applies to applicants for standard licences, is an individual’s fitness to hold a licence. The [NAME] did not err in law or fact by relying on his finding that [NAME] could not be trusted to run a compliant operation in assessing whether he was unfit to hold a restricted [NAME]’s licence. How, we ask rhetorically, could any sensible regulatory system turn its back on regulatory trustworthiness when addressing whether an applicant is unfit?

44. If [NAME] argues that “activities”, as referred to in section 13B, is limited to activities that have been the subject of a traffic [NAME]’s request for information, we reject the argument. In our judgment, the purpose of section 13B is to limit the scope of the matters that may be relied on in determining whether an applicant is unfit. That follows from the statutory wording – “activities…of which particulars may be required to be given under section 8(4))”. Had the statutory intention been to limit relevant activities to those in respect of which particulars had in fact been required, the phrase ‘may be required’ would not have been used.

45. We are not entirely certain whether [NAME] argues that Schedule 2 to the 1995 Act’s definition of “relevant activities” prevents post-application activities from being taken into account. But, even if we assume that argument is correct, in our judgment the most significant adverse findings made against [NAME] concerned either matters that occurred before, or straddled, his application for a restricted licence or [NAME]’s attempts at the PI to explain those matters.

Whether the [NAME] failed to give appropriate weight to / credit for positive features of [NAME]’s case

46. We do not accept that the [NAME] overlooked [NAME]’s operation’s full post-2013 regulatory history. The [NAME] is not required to refer to each and every item of evidence. We have before us a set of [NAME]’s reasons that are, in our view, of a high standard. We are satisfied that the [NAME] evaluated [NAME]’s application conscientiously and thoroughly. It is true that the [NAME]’s reasons focus on the more recent regulatory past but there was nothing wrong with that. In fact, it was in our judgment almost inevitable since the significant concerns in this case arose from more recent events;

47. We do not see how the Upper Tribunal could allow an appeal on the ground that a traffic [NAME] failed to give ‘appropriate’ weight and credit to a particular matter. [ADDRESS] of Appeal in [COMPANY] v Secretary of State for Transport [2010] EWCA Civ 695, [2011] RTR 13 addressed the nature of the Transport Tribunal’s (now Upper Tribunal’s) appellate jurisdiction. [ADDRESS] applied Subesh & ors v. Secretary of State for the Home Department [2004] EWCA Civ 56, [2004] INLR 417 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."

48. [ADDRESS] of Appeal also addressed ‘primary facts’ and findings built on primary facts. [ADDRESS] referred to Clarke LJ’s judgment in Assicurzioni Generali SpA v. Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577:

“16. Some conclusions of fact are…not conclusions of primary fact…They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way."

49. [NAME] does not argue that the [NAME] overlooked improvements made between the two audit reports nor could he since this factor was included within the [NAME]’s list of ‘positives’. It seems to us that [NAME], in effect, asks the Upper Tribunal to re-determine the weight to be given to the improvements. In the light of the case law just referred to, we decline to do so. For the same reason, the argument that the [NAME] failed to give “appropriate weight” to the operation’s compliance with licence undertakings does not succeed;

50. We do not accept that the [NAME]’s trustworthiness finding was flawed because he failed to consider ‘the wider picture of compliance’. The [NAME] did consider the extent to which [NAME]’s operation was, and had been, compliant with regulatory requirements. In any event, the [NAME]’s adverse trustworthiness finding was informed, to a significant degree, by matters that were not technical regulatory matters, albeit they sprang from [NAME]’s haulage activities, including knowing unlawful use of the vehicle, evasiveness and a willingness to lie or mislead.

Whether the [NAME] unreasonably interpreted the evidence

51. It is argued that the [NAME] had no regard to the difficulties caused by [NAME], an individual who has hovered over this case almost like Banquo’s ghost. This argument assumes that which [NAME] sought to prove before the [NAME]. In other words, this argument posits a finding of fact that was not made by the [NAME]. In our judgment, the [NAME] was entitled to be sceptical about [NAME]’s attempts to implicate [NAME] in the operation’s regulatory failings. But, in any event, the [NAME]’s reasons, on our reading, show he considered that, if [NAME] claims about [NAME] were correct, [NAME], as the licence holder, was in any event at fault for failing effectively to supervise him.

52. [NAME] argues that the [NAME] erred in finding that [NAME] was the source of the ‘off road’ explanation for the vehicle’s use while, at the same time, finding that other witnesses who gave similar evidence were credible. There was, says [NAME], a necessary inconsistency. We struggled to follow this argument since the [NAME]’s reasons state, quite clearly, that [NAME] conceded that he prepared the VOR notice after the event. This was not, therefore, a finding of fact based on inferences from other findings of fact. The [NAME] simply accepted [NAME]’s evidence. This argument does not succeed;

53. In our judgment, the [NAME]’s finding that [NAME] sought to mislead him about his role in the operation was properly supported by evidence. Paragraph 32 of the [NAME]’s reasons describes evidence given by [NAME] about his and [NAME]’s respective roles, which the [NAME] found inconsistent. For example, [NAME]’s asserted that he both “never let go” of supervising [NAME] but also “got to the point where I never needed to check up on him”. The [NAME] erred in neither fact nor law in finding that [NAME] attempted to mislead him about his role in the operation;

54. It is argued that the [NAME]’s evaluation of the evidence was inconsistent. [NAME]’s tachograph evidence was described as false yet the same evidence given by [NAME] was considered simply an error. Even if we accept that the [NAME] used pejorative language to describe [NAME]’s evidence, but not [NAME]’, so as to impute dishonesty, we reject this argument.

55. It is quite possible, in relation to a joint activity, for different people to be driven by different motivations. In our judgment, this is what the [NAME] decided. The [NAME] evaluated [NAME]’s evidence in the round. His assessment of any one piece of the evidence was inevitably informed by findings that other evidence given by [NAME] was false or misleading. By contrast, [NAME] made a generally favourable impression but what he lacked was experience. In our determination, there was no necessary inconsistency between, on the one hand, a finding that in submitting his application for a restricted licence [NAME] provided “false” evidence and, on the other hand, a finding that [NAME] made a mistake. Reading the reasons as a whole, it is in our view clear that the [NAME] found that [NAME], with his many years of haulage experience, provided ‘false’ tachograph-related evidence but

the inexperienced [NAME] made a mistake. This finding was tainted by neither error of law nor fact;

The remaining arguments

56. [NAME] argues that the [NAME] found, or assumed, that in-house maintenance would not meet regulatory requirements. A careful reading of the [NAME]’s reasons shows that he made no such finding/s. At this stage in his reasoning, the [NAME] was concerned with a failure to notify a change of maintenance contractor. The [NAME] made no finding that maintenance had to be carried out by external contractors or qualified in-house staff. The [NAME] was, in our view, simply noting that switching from qualified to unqualified maintenance personnel was a matter that might, not would, cast doubt on the effectiveness of maintenance arrangements. In effect, the [NAME] said this was a type of change that it was particularly important to notify. That approach cannot be faulted. It stands to reason that, in general, use of unqualified maintenance personnel, rather than qualified, carries a greater risk of unsatisfactory maintenance of vehicles. It is for this reason that the [NAME] stressed the importance of complying with the requirement to notify a change of maintenance contractor. This argument does not succeed.

57. The [NAME] did not misdirect himself in law in that he required [NAME]’s evidence to be corroborated. The [NAME] simply assessed his evidence in the round. The fact that some evidence was not supported by other evidence, whether oral or documentary, was simply one factor weighed in the balance. In our judgment, it is quite clear that the [NAME] did not apply some kind of corroboration rule;

58. We agree with the [NAME] that the question whether [NAME] received a notice of impending termination of his previous restricted licence was really beside the point. If the Office of the [NAME] does tend to issue such notices, it is perfectly entitled to do so. But, if such a practice went wrong in any particular case, it would not detract from a licence holder’s obligation to keep track of licence expiry dates. It is the [NAME]’s business after all.

59. We do not agree that the [NAME] erred by failing to give credit for [NAME]’s prompt application for an extension of his (expired) restricted licence and, when that was refused, his prompt application for an interim licence. These were

simply obvious actions that any [NAME] who wanted to stay in business would take. On any reasonable view, this was a neutral consideration;

60. [NAME]’s points about the limited nature of [NAME]’s business during the period of unlicensed operation (i.e. he broke the law but only a little bit) are an attempt to argue the facts afresh, rather than an argument that the [NAME] made an error of fact or law.

61. In arguing that [NAME] supplied the key piece of evidence that harmed his case, we have to assume that [NAME] refers to the means by which the transport consultant [NAME] became aware that the vehicle had covered some 8,000 km. [NAME] cannot sensibly argue that [NAME] should be given credit for supplying the [NAME] with [NAME]’s audit report. The undertaking to secure an independent audit was not imposed for the sake of it. The [NAME] wanted to see the contents of the subsequent audit report.

62. [NAME] has not identified evidence that shows, or might show, that [NAME] made an unprompted disclosure to [NAME] about the vehicle’s use and recorded mileage. But we do ourselves note that the [NAME]’s reasons are admittedly obscure on this point. They state that “a discrepancy had…been drawn to the reader’s attention”. Who is the ‘reader’? Is it [NAME]? We must therefore see what [NAME]’s September 2017 audit report said.

63. The September 2017 report says “examination of the records for the three vehicles specified in the licence revealed that…the third vehicle…had a VOR notice in the file showing the vehicle off the road between 6.6.16 and 8.3.17 however there was 8268 km travelled between the odometer readings entered on the VOR notice. I was informed the vehicle was used for non-commercial purposes and on loan to another company” (p.53 of the bundle). Taking an objective view, the report in our opinion strongly suggests that [NAME] discovered the mileage and then someone tried to explain it to him. [NAME]’s January 2018 report adds nothing of relevance.

64. Turning now to the transcript of the PI, we see that [NAME] told the [NAME] “[NAME] [[NAME]] pointed out to me the 8,000 kilometres, I’ve thought “I’ve not done that””. Where, then, is the evidence to show that [NAME] volunteered that the vehicle had travelled some 8,000 km during the relevant period? There is none. We do not see how the [NAME] could have found that [NAME] volunteered the information that the vehicle had travelled some 8,000

mysterious kilometres. There was no possible credit available on the basis that [NAME] volunteered information about the vehicle’s mileage;

65. Now, the argument that that the [NAME] erred by failing to recognise the honesty of [NAME]’s evidence that he could not explain the vehicle’s mileage.

66. To answer a question by saying ‘I don’t know’ is not necessarily an indication of truth. If a person does know the answer, saying ‘I don’t know’ is an untruth. [NAME] argues that the [NAME] erred by failing to give [NAME] credit for honestly admitting that he could not explain how the vehicle had covered 8,000 km. But it is [NAME] who asserts that ‘I don’t know’ / ‘I have no explanation’ was an honest answer. The [NAME] found that [NAME] either (a) did know the answer so that ‘I don’t know’ was untrue, or (b) did not know the answer, in which case he had failed properly to supervise use of the vehicles specified on the licence.

67. In our judgment, the [NAME]’s approach was entirely sound. He did not err in law or fact by limiting the options to two – untruthful evidence or failure of supervision – and deciding that, wherever lay the truth, an adverse finding would be made. We reject the argument that [NAME]’s inability to supply an explanation for the vehicle’s use (which seems to have been his final stance) was a matter that the [NAME] had to put in the credit side of the regulatory balance.

In conclusion

68. This appeal is dismissed but, as explained above, we allow [NAME] one month in which to wind down his business.

69. Finally, we must apologise for the delay in determining this appeal. After the hearing, the judge suffered a fracture and was away from duty for a period of time. We do hope the delay in giving this decision has not exacerbated the worries that [NAME] must have been experiencing about the future of his business.

Mr E Mitchell, Judge of the Upper Tribunal, 14 October 2018