Upper Tribunal Upholds Revocation of Operator's Licence Due to Loss of Repute

NCN: [2018] UKUT 0112 (AAC) Appeal No. T2017/64

IN THE UPPER TRIBUNAL ADMINISTRATION APPEALS CHAMBER [NAME]

ON APPEAL from the DECISION of the [NAME] for the Scottish Traffic Area ([NAME])

Dated: 8 August 2017

Before:

Marion Caldwell QC, Judge of the Upper Tribunal [NAME], Member of the Upper Tribunal Mr. [NAME], Member of the Upper Tribunal

Appellants: [redacted]

For the Appellants:

[redacted] [NAME], 126 [NAME], Edinburgh Postcode [POSTCODE] Date of Hearing: 6 December 2017 Date of Decision: 30 March 2018

DECISION OF THE UPPER TRIBUNAL

The appeal is dismissed.

SUBJECT MATTER

Goods Vehicles (Licensing of Operators) Act 1995; Variation Application; material change of circumstances; good repute; revocation; disqualification.

CASES REFERRED TO:

[COMPANY] T2010/49 [COMPANY] & [NAME] –v- Secretary of State for Transport [2010] EWCA Civ. 695 [NAME] T2011/29 Easy Go Transport Ltd. [2017] UKUT 0425 [NAME] v [COMPANY] v [NAME], NT/2013/52 & 53 [NAME] [2017] UKUT 0188 [NAME] T2009/225

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REASONS FOR DECISION

Introduction

1. This is an appeal from the decision of the [NAME] for the Scottish Traffic Area, made on 8 August 2017. In summary, the [NAME] revoked [COMPANY]’s [NAME]’s [NAME] on the grounds of loss of repute and material change of circumstances; disqualified [COMPANY] and its sole director [NAME] indefinitely from applying for or holding an [NAME]’s [NAME] in any traffic area and made an Order in terms of section 28(4) of the Goods Vehicles (Licensing of Operators) Act 1995.

2. The 1995 Act provides that no one shall use a goods vehicle on a road for the carriage of goods for hire or reward in connection with his trade or business except under a [NAME] issued under the Act (an “[NAME]’s [NAME]”). On an application for a standard [NAME] the [NAME] must consider and be satisfied that the applicant is, among other things, of good repute, has appropriate financial standing and is professionally competent (section 13A). “Good repute” must be determined in accordance with paragraphs 1 to 5 of Schedule 3 to the 1995 Act. Paragraphs 1 and 2 of that Schedule provide as follows:-

1(1) In determining whether an individual is of good repute, a [NAME] may have regard to any matter but shall, in particular, have regard to—

(a) any relevant convictions of the individual or of his servants or agents; and

(b) any other information in his possession which appears to him to relate to the individual’s fitness to hold a [NAME].

(2) In determining whether a company is of good repute, a [NAME] shall have regard to all the material evidence including, in particular—

(a) any relevant convictions of the company or of any of its officers, servants or agents; and

(b) any other information in his possession as to the previous conduct of—

(i) any of the company’s officers, servants or agents, or

(ii) any of its directors, in whatever capacity,

if that conduct appears to him to relate to the company’s fitness to hold a [NAME].

3. Section 26 of the 1995 Act sets out grounds on which the [NAME] may direct that an [NAME]’s [NAME] may be revoked. One of such grounds is that since the [NAME] was issued or varied there has been a material change in any of the circumstances of the [NAME] that were relevant to the issue of variation of the [NAME] (section 26(1)(h)). Section 27 provides that the Traffic

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Commissioner must direct that a standard [NAME] shall be revoked if at any time it appears to him that the [NAME] no longer satisfies the requirements of section 13A(2).

4. Section 28 of the 1995 Act provides that where the [NAME] directs that an [NAME]’s [NAME] be revoked he may order that the person who was the [NAME] of the [NAME] be disqualified either indefinitely or for a limited period, from holding or obtaining an [NAME]’s [NAME] so long as the disqualification is in force (section 28(1)). Section 28(4) provides as follows:-

(4) Where the [NAME] makes an order under subsection (1) in respect of any person, the commissioner may direct that if that person, at any time or during such period as the commissioner may specify—

(a) is a director of, or holds a controlling interest in—

(i) a company which holds a [NAME] of the kind to which the order in question applies, or

(ii) a company of which such a company is a subsidiary, or

(b) operates any goods vehicles in partnership with a person who holds such a [NAME],

that [NAME] of that company or, as the case may be, of that person, shall be liable to revocation, suspension or curtailment under section 26.

(5) The powers conferred by subsections (1) and (4) in relation to the person who was the [NAME] of a [NAME] shall be exercisable also—

(a) where that person was a company, in relation to any director of that company, and

(b) where that person operated vehicles under the [NAME] in partnership with other persons, in relation to any of those other persons;

and any reference in this section or in section 26 or 29 to subsection (1) or (4) above includes a reference to that subsection as it applies by virtue of this subsection.

Background

5. The background to this appeal can be found within the papers and the [NAME]’s written decision. The appellants are a limited company and the sole director of the company is [NAME] (born 21 January 1963). [NAME] is the only shareholder of the company. [NAME]’s domestic partner is [NAME] (“[NAME]”) who was born on [DATE]. They have been domestic partners since about 2009 and business associates since about 2006.

6. [NAME] has been involved in the business of haulage since the 1990s. He was disqualified indefinitely from holding or obtaining an [NAME]’s [NAME]

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on or about 29 October 1999. At some point, his disqualification was removed and he became involved with a company called [NAME]. On 21 November 2001 a company called [COMPANY] was incorporated, the directors being [NAME]’s son [NAME] and [NAME]. In or about 2006 [NAME] went to work for [NAME] and [NAME] as administrator of the company. On 1 December 2007 she became the company secretary and remained such until the company’s dissolution in May 2011. [NAME] had been granted an [NAME]’s [NAME] on 29 October 2002. At the same time, [NAME] worked as the office administrator of [COMPANY] whose directors were [NAME] and [NAME], the latter also being the owner and manager. [NAME] and [NAME] had applied for an [NAME]’s [NAME] which was refused by the [NAME] on 30 October 2003.

7. On 27 July 2007 [NAME] was called to public inquiry. The public inquiry was adjourned and reconvened on 6 November 2007 and on 16 January 2008. On 28 April 2008 the [NAME] held that [NAME] was a front for [NAME] and revoked the [NAME] and disqualified the company and the traffic manager and former director, [NAME]. The company and [NAME] appealed to the Transport Tribunal. On 3 October 2008 the Tribunal dismissed the appeal. The Tribunal noted [NAME]’s evidence, as administrator of both [NAME] and [NAME], that [NAME] had signed cheques for [NAME] even although he was neither an employee nor director of the company; that as administrator for both companies she would invoice [NAME] for expenditure made on its behalf by [NAME] and then in her capacity as administrator for [NAME] she would write out the cheques in favour of [NAME]. When this arrangement was queried by the [NAME] could not provide an adequate explanation save that [NAME]’s credit worthiness was not sufficient. (See pages 157-158.) The Tribunal commented:-

“As at the date of the public inquiry, changes had been made to the administration and personnel of the company which gave [NAME] some appearance of autonomy, although it should be noted that the role of [NAME] was highly unusual, being the administrator for both companies and being responsible for the invoicing from [NAME] to [NAME] and the payment of those invoices from [NAME] to [NAME], giving the impression of a paper exercise rather than the operation of 2 separate companies.” (Paragraph 7, page 161.)

8. On 23 January 2009 [COMPANY] was incorporated. The directors were [NAME] and [NAME]. That company applied for an [NAME]’s [NAME]. A public Inquiry was held on 8 August 2011 to consider allegations that the company had been operating vehicles without authorisation and had connections to [NAME]. The [NAME] application was refused.

9. On or about 22 December 2009 [COMPANY] was incorporated. The directors were [NAME] and [NAME]. [NAME] held one share in the company the other 99 being held by [NAME]. She served as a director from 22 December 2009 until 31 May 2010 and again from 5 July 2010 to 30 April 2013. She was the administrator of the company. The registered office of the company was Newton Garage, Newton Croft, [ADDRESS], Bucksburn, Aberdeen. [COMPANY] applied for an [NAME]’s [NAME]. Originally, [NAME]’s name appeared on the application however, as a disqualified person he should not have been party to this. The [NAME] allowed his name to be removed from the application. The [NAME] allowed the removal of [NAME]’s indefinite

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disqualification and granted [COMPANY] an [NAME]’s [NAME]. The operating centre was [ADDRESS], Bucksburn, Aberdeen.

10. On 12 February 2013 [COMPANY] was incorporated. The directors were [NAME] and [NAME]. The registered office was [ADDRESS], Aberdeen. [NAME] was the administrator of the company. On 19 June 2013 [COMPANY] applied for a standard international goods vehicles [NAME]’s [NAME] to operate 5 vehicles and 5 trailers from Bucksburn Garage, [ADDRESS], Aberdeen. The proposed transport manager was [COMPANY] began trading in about March 2013, that is before it had an [NAME]’s [NAME].

11. On 9 October 2013 call up letters were sent to [COMPANY] and to [COMPANY] to consider 3 variation applications made by [COMPANY] and the application for an [NAME]’s [NAME] by [COMPANY]. The public inquiry commenced on 13 November 2013. On that date, [NAME] attended the public inquiry along with [NAME]. On 30 April 2013 [NAME] and [NAME] had resigned as directors of [COMPANY]. Nevertheless, [NAME] continued to be involved in the administration of [COMPANY]. She was also involved in the administration of [COMPANY] and had made a loan to that company (page 304). At the public inquiry, the [NAME] found that [COMPANY] had got into financial difficulties and had ceased trading as a haulier in about March 2013. He made adverse findings in relation to vehicle roadworthiness covering the period 20 December 2011 to 7 November 2013.

12. [NAME] refers at paragraph 17 of his 21 November 2013 decision to the August 2011 Inquiry at which he was persuaded to grant the [NAME]. [See page 174 of this Inquiry brief.] He wrote “In granting the [NAME] I made it quite clear that I expected the two of them, as directors, of the [NAME] to be open and transparent with all their dealings and to ensure that the undertakings given at the time the [NAME] was applied for were fulfilled at all times. I granted the [NAME] for 1 vehicle and 2 trailers – a modest return to [NAME] licensing – a starting point for [NAME] to get back into [NAME] licensing, to orientate himself within that regime and to demonstrate that he was now a rehabilitated and responsible [NAME]. At the conclusion of that public inquiry we parted company with, I believe, an understanding namely that it was entirely a matter for them [ i.e. [NAME] and [NAME]] as to how they conducted the (haulage) business of the [NAME] and that I would not be far away should concerns begin to arise with regard to its operation”. [NAME] narrated that he soon after had concerns. However, he stated that at the Public Inquiry held on 13 November 2013 “I am in no doubt that [NAME] and [NAME] were open and honest with me. I accept their evidence as being credible and reliable”.

13. He did record at paragraphs 23, 24 et seq. that [NAME] had been sent an email from Highland Council advising that there was no permission given to [NAME] for an operating centre yet [NAME] signed the forms some days later. Paragraphs 29 and 32 record further evidence about financial matters from [NAME]. Issues arose in the Public Inquiry about the operation by the new applicant company [COMPANY]. However, the [NAME] did not revoke the [NAME] on financial standing grounds which he could have done (paragraph 43) but postponed for a reconvened Public Inquiry, with additional call up letter. [See page 178 of this Inquiry brief.]

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14. In his decision, the [NAME] recorded that [NAME] had explained that the [NAME]’s vehicles continue to be insured by the [NAME] and if not subject to finance agreements they continued to be registered to the [NAME]. He noted that she had been at pains to point out that it was the [NAME] that paid the finance agreements but noted that an examination of the bank statements of [COMPANY] disclosed payments to the finance company and there did not appear to be any credit entry from the [NAME] in respect of such payments (page 177 paragraph 32).

15. The [NAME] found that [COMPANY] had been operating vehicles without a [NAME] since about March of 2013. When this was put to [NAME] he had accepted that was the case (page 177, paragraph 33). He found that [COMPANY] had been displaying vehicle identity discs issued to [COMPANY], in other words that [COMPANY] through its directors had “loaned” discs to [COMPANY] such conduct, he stated, raised significant issues to do with the good repute of the [NAME] ([COMPANY]), the applicant ([COMPANY]), all of the directors and the transport manager and proposed transport manager (page 177 paragraphs 34 and 35). Nevertheless, he did not revoke the [NAME] or refuse the [NAME] application at that stage.

16. On 14 February 2014, the [NAME] presided over yet another Public Inquiry and revoked [COMPANY]’ [NAME] on financial standing grounds. Further, he granted an interim [NAME] to [COMPANY] for 3 vehicles and 3 trailers. On 22 June 2016, [NAME] suspended the interim [NAME] granted to [COMPANY]. All had not gone well and [COMPANY] was recalled to a Public Inquiry with hearings on a range of dates until ultimately [NAME] issued a written decision, dated 3 May 2017, in which he refused the application by [COMPANY] for a [NAME]; he revoked the interim [NAME]; he disqualified the applicant company [COMPANY] indefinitely. He disqualified [NAME] from holding an [NAME]’s [NAME] indefinitely. He found that [NAME] was no longer of good repute as a transport manager and he disqualified him indefinitely. He disqualified director [NAME] for 5 years.

17. In respect of [NAME], he wrote at paragraph 195 of his decision “[NAME] is also in an invidious position. She has never been a director of [COMPANY]. She has however been actively involved in the day-to- day running of the business. She was one of the original directors of [COMPANY] until she resigned. I have thought long and hard as to whether she has been acting as a ‘shadow director’ but she too has been directed by [NAME]. I refrain from making any adverse determination so far as she is concerned”. The reference to [COMPANY] should, perhaps, properly be [COMPANY] and that to [COMPANY] to [COMPANY].

18. Companies House records show that [NAME] was a director of [COMPANY] SC496462, a company incorporated on 2 February 2015. From date of incorporation to 31 March 2016 [NAME] was the only other director from date of incorporation to 1 October 2016. The Companies House position is that there is no company [COMPANY]. There is [COMPANY] (SC496062) of which [NAME] and [NAME] were directors and [NAME] (SC442625), which had [NAME] and son [NAME] as directors. The registered office of [COMPANY] was Newton Garage, [ADDRESS], Bucksburn, Aberdeen.

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19. The [NAME] found that a vehicle registration number [ID] and registered to [NAME] was being driven on 28 April 2016, presumably on work for [COMPANY], at a time when it was not specified on the interim [NAME] granted to [COMPANY].

20. On 3 October 2016 vehicle [ID] and registered to [COMPANY] was being operated without displaying a disc. An analysis of the driver’s card and digital tachograph showed that the vehicle had been driven on a regular basis since 9 August 2016. The vehicle was impounded.

21. The [NAME] found that between 26th and 30th September 2016 that 6 vehicles all registered to [COMPANY] but not specified on the interim [NAME] were involved in a total of 17 journeys transporting materials to and from sites associated with the construction of the Aberdeen bypass (page 190, paragraph (xl)).

22. Following the refusal of [COMPANY]’s [NAME] application, revocation of its interim [NAME] and the disqualification of that company, [NAME] and [NAME], on 1 June 2017 [NAME] became a director of [COMPANY]. [COMPANY] was incorporated on 27 February 2003. At the date of incorporation the company officers were [NAME], company secretary (27 February 2003 to 31 May 2017) and [NAME], director (27 February 2003 to 31 May 2017). [NAME] was a director from 1 February 2005 to 31 May 2017. The registered office was 1 Jubilee Cottage, Kirkton of Skene, Westhill, Aberdeenshire.

23. [COMPANY] was granted a standard national [NAME]’s [NAME] on 15 August 2003. The authorisation was for 2 vehicles and 4 trailers from an authorised operating centre at Cottown Garage, Kintore, Inverurie. The transport manager was [NAME]. The main business of [COMPANY] was local and long distance with 44 tonne articulated vehicles.

24. From 19 March 2014 no vehicles were specified on the [NAME] and [COMPANY] was no longer trading and had no employees. However, they did not relinquish their [NAME].

25. Some time in 2016 [NAME] approached [NAME] about buying his company. At that time he was not interested in selling. However, in 2017 he did agree to sell [COMPANY] to [NAME] for £8,000. Other than the company name and the [NAME]’s [NAME], no assets were transferred for the sale price.

26. On 24 May 2017 the Leeds Central Licensing Office received notification of [NAME]’s resignation as transport manager for [COMPANY]. On 25 May 2017 [NAME] submitted an online variation application to the [NAME] to change the directors, the transport manager, the correspondence address to Newton Garage, [ADDRESS], Bucksburn, Aberdeen and to change the operating centre to [ADDRESS], as aforesaid.

27. On 5 June 2017 an application was made to specify and receive a disc for vehicle [ID], a 32 tonne vehicle. DVLA showed the registered keeper of that vehicle to be [COMPANY] on 25 May 2017. The immediately previous registered keeper being [COMPANY] of the same address, the acquisition date being 15 September 2016.

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28. [NAME] provided the following additional information on the variation form (page 30):-

“I worked for [NAME] in [NAME], and [NAME] I also was for a while a director of [NAME] while it ran a garage and resigned when it got involved in transport. In these cases (I) was not a director apart from [COMPANY] but when transport came into it I ended up as shaddow director therefore resigning. This venture is on my own with no other involvement from anyone else.”

29. The Leeds Central Licensing Office began to process the application however, the application came to the attention of the [NAME]’s Office in Edinburgh and on 19 June 2017 a letter (page 104) was sent to [NAME] stating:-

“I refer to the [NAME] held by [COMPANY] [ID]. The [NAME] is aware that you, [NAME], have been in contact with the Central Licensing Office and are seeking to operate using the existent [NAME]. It is noted that you applied by online variation application to alter the [NAME] adding yourself as sole director, amending the operating centre to [ADDRESS], [POSTCODE] and nominating a [NAME] as Transport Manager.

As you currently have no authorised operating centre, have not demonstrated evidence of financial standing and the repute of the director and nominee transport manager are yet to be considered, the [NAME] remains to be satisfied that the company meet the requirements to hold a [NAME] and has directed that the [NAME] cannot currently authorise the operation of vehicles.

In order to assist in assessing whether you can operate the [NAME] has instructed that your application be considered at a Public Inquiry at the earliest opportunity. The [NAME] has therefore scheduled a Public Inquiry to be held on 24/07/2017, in the Office of the [NAME], The Stamp Office, [ADDRESS], Edinburgh commencing at 11am to consider the issues.

Formal notification and the brief of papers for the Public Inquiry will follow shortly.

Please note that you are not authorised to operate goods vehicles until your variation application is granted or you have an interim [NAME] in force”.

30. On 26 June 2017, a formal call up letter was issued setting out the issues for the Public Inquiry and including [NAME]’s apparent links to other companies and to companies or operations by [NAME] (page 15).

31. In response to the call up letter, [NAME] withdrew the nomination of [NAME] as transport manager and nominated the former owner, director and transport manager, [NAME] as an external transport manager. It was declared that he would work for 3 hours each Saturday and Sunday. She produced financial documentation in the form of bank statements for an account in [COMPANY]’s name opened on 26 June 2017 and personal bank loan documentation to show source of funds. A maintenance agreement for six-weekly inspections was also produced.

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32. [NAME] provided a statement dated 6 July 2017 setting out how she wished to run the company (page 272-274). In addition the following documents were provided:-

Axa Insurance Motor Cover Note for the month of June 2017 (page 261)

Invoice dated 1 June 2017 from [COMPANY] to [NAME] for cash sale of tipper registration number [ID] for £2400 (page 262)

Annual Test Certificate dated 20 March 2017 for [ID] (page 263)

DVLA V5 for [ID] (page 264-267)

Email of 3 July 2017 from [NAME] to Leeds Central Licensing Office and a statement dated 11 July 2017 (page 268)

Statement by [NAME] on how he would perform as transport manager (page 276)

TM1 form for [NAME] and copy of his CPC

Table of costings for the scheme transport operation (page 275)

DVLA leaflet on HGV driver basics (page 277-278)

Proforma DDR book (page 279)

The Public Inquiry

33. The public inquiry took place at Edinburgh on 24 July 2017. Those present were [NAME], represented by [NAME], solicitor and the nominated transport manager, [NAME]. [NAME] and [NAME] gave evidence.

34. [NAME] gave evidence that she lived with [NAME] and was also his carer as his health was not good. She had worked with [NAME] for over 10 years starting as bookkeeper with [NAME]. She had worked in transport for that time and realised what was expected but had never been given the chance to do it the way it should be done. Some things, she said, had been done against her wishes. She realised that the [NAME] would be putting [NAME] out of business. She said that it was a coincidence that she approached [NAME] in the summer of 2016. She said that she had been thinking about setting up on her own for a long time. She had known [NAME] for about 12 years. She knew that his company was not trading. Initially he did not want to sell as he said he was holding on to the company for his son. She also had discussions about buying [NAME] and began discussions with them in about April 2017. When she thought she was buying [NAME] she wrote to the Central Licensing Office in Leeds to ask if she would be allowed to run a transport company however, no one responded to her. She spoke to [NAME] again in about March/April 2016 as she knew his circumstances had changed and he agreed to sell. It took his accountant a while to tie things up before the transfer. She decided that as she had not had an answer from the CLO about running a company it was better to buy the cheaper company, namely [COMPANY].

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35. In the past, [NAME] had sat and failed the transport manager CPC. It was her intention to re-sit the examination. Meanwhile, she needed a transport manager for [NAME]. She nominated [NAME]. She was aware that he had lost his repute some years ago. She gave him a copy of the letter she had been sent from the office of the [NAME]. She had not heard from him since despite calling at his house, emailing and texting. She had nominated him because he was someone of whom she knew. She then asked [NAME] if he would act as transport manager until she got her CPC. She said that he needed to be reassured that [NAME] would not be behind the [NAME]. She had meetings with the [NAME] and told them that [NAME] would not be in her office, that he would take no decisions and that he would be out of it. [NAME] agreed to be nominated as transport manager. The TM1 form proposed that he would work 3 hours on Saturdays and 3 hours on Sundays. She said that he could drop in at any time and that she could phone him. She said that the [NAME] did not live far from her.

36. She changed the registered office address and also the operating centre. She said that it was she who held the lease on the site at [ADDRESS], Bucksburn. She said her signature was on the lease. She said she signed it but could not remember if it was originally in her name as tenant or if it was in the name of [NAME] because it was originally [NAME] that took on the lease. There were still 4 years left on the lease and she wished to make money out of that. She now rents out caravans in the yard to workmen; this was something that she had been doing before she bought [NAME]. She also has a tenant for the garage. The rent for that is paid into the [NAME] account and she then transfers it to her personal account. She pays her rent for the yard from her personal bank account.

37. She said that she wanted to make this work and to prove that she was capable of doing it on her own. When asked about control of the business and safeguards, she said she controlled the bank account, the office and the passwords on the computer. Her name was on everything. [NAME] was not a cheque signatory to the bank account and he did not have the ability to make purchases. She said she had told everyone that she had taken over [NAME] and it was nothing to do with [NAME]. [NAME] had not put finance into the business nor was he a signatory.

38. She had prepared costings for [NAME]. No lorries came with the purchase of [COMPANY]. She said that [NAME] had owed her money and so she took [ID] in place of money due. She said the vehicle was parked up at the [ADDRESS] yard. She said that it was an older vehicle and so would receive 4 weekly checks; she said she was well aware of the checks needed to keep the [NAME] in line. Tachographs would be analysed and infringements left for [NAME] to look over. She said that she needed to prove herself. People were already saying that [COMPANY] was [NAME] back in business again. She said that she had put cash into [NAME] and so the vehicle was taken out against the loans that she had given [NAME] in the past.

39. It was put to her by her solicitor that she had been the company secretary of [NAME] whose [NAME] was revoked and the company disqualified; she had been a director of [NAME] whose application was refused following public inquiry; she had been a director of [COMPANY] whose [NAME] was revoked in February 2014; she had been an employee of [COMPANY] and a director of [COMPANY]. It was put to her that none of them had had a successful ending in terms of compliance and she

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agreed with that. She was asked how she would ensure compliance for [COMPANY] to which she replied she would put in every minute of time that she could herself; that she had to do the work herself; overlook the work herself and make the decisions herself. She said she had never agreed with the fact that [NAME] had run before he could walk. Her idea was to take her time. She intended to work with one vehicle until she had excess work and then she would buy another vehicle or lease one. She would like to replace the older vehicle and have 2 newer vehicles and she was not sure if she would lease or buy. She would like eventually to have a [NAME] for 4 vehicles. She had seen what had gone wrong in the past and that she had learned from that. She had studied for the CPC but did not pass. It was her intention, at the same time, to study for the CPC.

40. [NAME]. She said that in the first 3 years that she worked for him he did everything by the book and that the things that had happened to cause the public inquiry were from before she’d started working with him. She said she had had a lot of respect for him and he never asked her to do anything he would not do himself. She was therefore willing to help him and could not see anything he was doing wrong from where she stood. She said that when she first started working for [NAME] she did not know the ins and outs of an awful lot at all. She was asked to go to the public inquiry as proof of the financial side of who had paid whom.

41. She said the involvement with E [NAME] and Son (Haulage and Plant) Ltd had been a disaster. Mr [NAME] took cash and used the money when VAT needed paying. Thereafter, she thought she could run [COMPANY] as a garage and they applied for a [NAME] which took 2 years. They lost money through the garage side of the business. This had not gone as she planned. She then thought that [NAME] could start afresh with [COMPANY]. She said he was doing a lot of things right but [NAME] was petty. When [NAME] put vehicles out to work without a [NAME] she tried to make him see sense. She said she had chosen not to be a director and it was out of her hands. She continued to do the invoicing, downloading tachographs, dealing with drivers but she had no final say.

42. She said that she had been calling round to obtain work for [COMPANY]. She had the same contacts as before and as [NAME]. Some of her contacts, with a couple of exceptions, had said they would give her work. The [NAME] asked her about the association between [NAME] and [NAME]. She said that [NAME] had told her that he had been talking to [NAME] and he would possibly sell his company to her. This was something that she and [NAME] had discussed, that is, her taking over a company. [NAME] had known that in the past she had spoken to [NAME] about it. If she had bought the [NAME] business she would have been doing that along with Paul Harford a former driver with [NAME].

43. When questioned about her costings by the [NAME] admitted that her costings were incomplete and crude.

44. When asked why she had simply not set up her own company in her own name or by using another name, she stated that she thought as [NAME] already had a [NAME] it would be simpler and would speed up the process. She said that when she had contacted Leeds she did not mention her involvement with [NAME] but did say she had been involved with [NAME]. In her variation application she stated that she had worked for [NAME] in [NAME], that for a while she was a director of [NAME] while it ran a garage and resigned when it got involved in transport. (See page 30)

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45. [NAME] gave evidence that [NAME] initially approached him in 2016 about buying [COMPANY] but at that time he did not want to sell the company. Thereafter, his son told him that he was not able to take on the company and so when [NAME] approached him again in 2017 he agreed to sell the company. He said he made it plain to [NAME] that he would not sell the company if [NAME] had anything to do with it. He sold the company with the [NAME]’s [NAME], which still had a year to go, for £8,000. No assets were transferred. He handed over 2 discs plus 4 licences that went with the company. [NAME] was going into an entirely different line of work from what he had done which was with 44 tonne articulated lorries doing local and long distance. He said that when he was first approached about the sale he did not know anything about [NAME]’s suspensions.

46. In his role as transport manager he said he would work 3 hours on a Saturday and 3 hours on a Sunday. Although he would not be there during the week he had access to a phone. He said he would know every company that the vehicle was working for and he knew [NAME]’s contacts. He said he did not like [NAME] that he knew the sort of things that he’d done, he knew about the public inquiry, that he treated [NAME] like dirt, that he uses people, that he’s owed people money all over the place, that he promises to go on the straight and narrow but takes on too much work and his vehicles break down.

47. When it was put to him by the [NAME] that he would not be able to tell whether or not [NAME] was involved he said he had to admit that that was true. Nevertheless, he was satisfied that the arrangement which was being proposed by [NAME] had nothing to do with [NAME]. If he found that was not the case he would resign as transport manager and contact [NAME].

The decision of the [NAME]

48. The [NAME] made the following findings in fact:-

“56. [COMPANY] under directorship and ownership of Mr and [NAME] ceased business operations in March 2014 when the last vehicle was specified. [NAME] does not keep good health. Apart from some casual driving work, [NAME] had otherwise retired.

57. The nature of [COMPANY].’s work was 44 tonne arctic and trailer work. It was not quarry or tipper work.

58. As from at least March 2014 [NAME] had no employees and no vehicles.

59. [NAME] is the domestic partner of [NAME] (known as [NAME]) and participant in his businesses since at least 2007 in various capacities ranging from employed book-keeper to sole and co-director of companies and company secretary.

60. From summer 2016 [NAME] attempted to buy a company holding an [NAME]’s [NAME]. She approached [NAME]’s [NAME] and [NAME]. They were chosen because their companies respectively held an [NAME]’s [NAME] and not to secure assets. I find that these approaches were made with the knowledge of [NAME] and as a means whereby [NAME] and [NAME] could continue to operate

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goods vehicles commercially including vehicles owned by companies under their control.

61. From her time as an administrator, book-keeper and company secretary of [NAME] has been involved at the centre of the financial administration including invoicing for the various entities in which she, [NAME] and [NAME] have operated goods vehicles whether licensed or not.

62. I find that [NAME] was used by herself and [NAME] as the person who would buy a company with an [NAME]. There was no attempt to buy vehicles, take on a workforce or an operating centre. The sole purpose of company purchase was to obtain an [NAME] without making an originating application for such with attendant publication and scrutiny.

63. [NAME] paid Mr and [NAME] £6,000 for the transfer of their shareholding in [NAME]. That was the price paid for the [NAME] and for no other asset other than the company number and name at Companies House.

64. The motivation for the purchase of a company with an [NAME] was the suspension of the interim [NAME] held by [COMPANY] on 23 June 2016 and the possibility of refusal of a [NAME]. [NAME] and [NAME] needed an [NAME] for operation did not stop on June 23 2016 but continued until at least 28 March 2017 when 2 vehicles were stopped and found to be operating under the instructions of [NAME].

65. [NAME] knew of the unlawful operation. She was party to it.

66. On 3 May 2017 the application for a [NAME] by [COMPANY] was refused and the company and directors [NAME] and [NAME] were disqualified. That decision left [NAME] as the only one of the three, who as of then, was not disqualified.

67. From at least 2007 [NAME] has made her living as part of [NAME]’s operations and businesses based at [ADDRESS], Bucksburn.”

49. In making these findings in fact, the [NAME] had in mind the long history of non-compliance by [NAME], and the various business entities with which he has been involved, against the road safety and fair competition regulatory regime which requires an [NAME]. She considered that since 2007 [NAME] had been at the core of these businesses, was aware of the material non-compliance and worked with the ingathering of invoiced funds for unlawful operating. She relied on the serial unlawful operating set out in [NAME]’s very detailed decision of 3 May 2017 and her own impounding decision of 28 May 2017 (pages 348 and 349, paragraphs 68 and 69).

50. The [NAME] noted that [NAME] had been involved in non-compliant operating for a long time up until very recently. Following the suspension of the [NAME] for [COMPANY] [NAME] had obtained two vehicles through the agency of [COMPANY] and put those vehicles to work without a [NAME]. This had continued until the last impounding date of 28 March 2017.

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51. In response to [NAME]’s submission that [NAME] had been “transparent”, the [NAME] observed that in her contact with the Leeds Central Licensing Office, [NAME] did not advise the CLO of the potential takeover of [NAME] or proactively disclose her relationship with disqualified persons.

52. The [NAME] posed the questions: was [NAME] a front for [NAME] and, if not, does she have the necessary repute for an [NAME]’s [NAME]; could she be distinguished as an individual from her history with other companies and persons engaged in [NAME] licensing and could she be free of the influence of [NAME]? (Page 349, paragraph 71.)

53. In her assessment of [NAME], the [NAME] found her costings to be simplistic, despite the fact that she was a bookkeeper; she had been unsure of her legal status regarding the tenancy of the yard at [ADDRESS]. She found that [NAME] and [NAME] had operated as a team and she had not been able to stand up to him in the past. In the circumstances, the [NAME] was unable to accept [NAME]’s assertions that she would control [COMPANY] without the involvement of [NAME].

54. Likewise, she was unable to accept [NAME]’s assertion, and [NAME]’s submission, that the suspension of the [NAME] on 22 June 2016 (and revocation and disqualifications in May 2017) and [NAME]’s approach to [COMPANY] in the summer of 2016 then to [COMPANY] and [COMPANY] in March/April 2017 were purely coincidental.

55. The [NAME] then considered the questions of repute, whether the [NAME] could be trusted for the future and whether she was required to put the [NAME] out of business. On the positive side she noted that since receipt of the letter of 19 June 2017 from the Office of the [NAME], there was no evidence that [COMPANY] had operated without a disc.

56. On the negative side, she did not accept that the transport manager would truly know what was going on in the business when he was not there Mondays to Fridays. An interpretation of events was that with the suspension of the [NAME] from 22 June 2016 and the likelihood that it would be revoked, the likelihood that of [NAME] and [NAME] would be the only one of the three not disqualified, that she began to look for a suitable company to buy to continue operating; that she “bought a [NAME]” by acquiring a company which had a [NAME]; no tangible assets or goodwill were transferred for the purchase price; a [COMPANY] vehicle was transferred to [COMPANY]; the changes were made at Companies House and the variation application lodged with a view to resuming operating shortly after the revocation of the [NAME] and the disqualifications of [NAME] and [NAME]. The [NAME] inferred that this was another example of [NAME] manipulating the system and others for his own ends; as he had been found to do in the past, including the recent past. Since 2007, she found that [NAME] had been aware of the illegal operations and had not stopped it or distanced herself from it.

57. [NAME]’s involvement in past non-compliance, the [NAME] was unable to accept her assertions that she wanted to be her own person and prove herself. She still lived with [NAME] and remained within his sphere of influence and there would be common commercial benefit in the use of the yard and getting work.

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58. The [NAME] noted that there was a recurrent pattern across the years of [NAME] and [NAME] going on and off companies at Companies House and on licences. She inferred that this behaviour was designed to elide responsibilities under company law and [NAME] licensing. She found that [NAME] was party to this. She found that [NAME] and [NAME] had offended against fair competition which was essential to [NAME] licensing. She had to consider the impact on the regulatory regime and fair competition when assessing the variation application made by [NAME] for [NAME] and the companies and her repute as director. She had regard to the decision in [COMPANY] [2010] UKUT 367 (AAC) and the meaning of “repute”.

59. As regards the question of whether it was proportionate that the [NAME] put [NAME] out of business, she noted that [NAME] had not operated vehicles since 2014; there were no discs in issue; the persons who were directors and owners at the time of the grant of the [NAME] were no longer owners; there were no employees and that there were scant economic factors to put in play when assessing whether loss of the [NAME] would be disproportionate or draconian.

60. As to whether [NAME] and [NAME] could be trusted in the future she found that there was no prospect of [NAME] being trustworthy. She found that nothing that had been said to her or on her behalf about [NAME] was in any way reassuring. She therefore found that [COMPANY] had lost its repute through material change and revoked the [NAME] on the grounds of loss of repute and material change since the grant of the [NAME]. She found that the sole director of [NAME], was not of repute.

61. She was then required to consider the question of disqualification. The [NAME] found that the [NAME] applied for was to be used to circumvent the revocation and disqualification of [NAME] and [COMPANY]. As she found there was no distance or separation between herself and [NAME], the [NAME] disqualified [COMPANY] and [NAME] indefinitely to reflect the disqualification of [NAME] and [COMPANY].

The Appeal to the Upper Tribunal

62. The following principles (extracted from the Digest of [NAME] appeals) as to the proper approach to an appeal in the upper tribunal can be found in the decision of the Court of Appeal in the case of [COMPANY] and [NAME] v The Secretary of State for Transport [2010] EWCA Civ 695: (1) The Tribunal is not required to rehear all the evidence by conducting what would, in effect, be a new first instance hearing. Instead it has the duty to hear and determine matters of both fact and law on the basis of the material before the [NAME] but without having the benefit of seeing and hearing the witnesses.

(2) The Appellant ‘assumes the burden’ of showing that the decision appealed from is wrong.

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(3) In order to succeed the Appellant must show not merely that there are grounds for preferring a different view but that there are objective grounds upon which the Tribunal ought to conclude that the different view is the right one. Put another way it is not enough that the Tribunal might prefer a different view; the Appellant must show that the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view.

The tribunal sometimes uses the phrase “plainly wrong” as a shorthand description of this test. ([NAME] v [COMPANY] v [NAME], NT/2013/52 & 53 paragraph 8).

63. The grounds of appeal are at pages 363 to 365 of the bundle. At the hearing of this appeal, the appellants were represented by [NAME], of Counsel, who provided a skeleton argument and chronology for which we were grateful. Broadly, it was argued for the appellants that a number of serious factual findings made against [NAME] by the [NAME] were unsupported by the evidence and that the findings were arrived at in a way which involved inadequate forensic analysis of the evidence that was before the Commissioner. Since those findings formed the foundation of the [NAME]’s decisions in relation to repute, revocation and disqualification, it was argued that those decisions were unsafe. While it was recognised that the Tribunal will only interfere with decisions of Traffic Commissioners where they are found to be “plainly wrong” (Bradley Fold Travel) and that the Tribunal will accord some respect to the fact that the assessment of evidence is for the [NAME], who has the advantage over the tribunal of having seen witnesses give evidence, nevertheless the tribunal has also emphasised the importance of decisions being adequately and rigorously reasoned (Easy Go Transport Ltd [2017] UKUT0425, [NAME] T2011/29 and [NAME] [2017] UKUT 0188).

64. It was submitted that the [NAME] had made a finding that [NAME] had not been transparent in her application about her links with [NAME] and in doing so had simply misjudged the evidence.

65. What the [NAME] said about [NAME]’s dealings with the Central Licensing Office in Leeds has to be put into context. At the public inquiry, [NAME]’s solicitor, made a submission that she had been transparent in her desire to take on a new challenge and to take on the ownership of a limited company that holds a goods vehicle [NAME]. He said that from the outset [NAME] wrote and declared a desire to be involved in goods vehicle [NAME] licensing and to be involved or to take over, to buy shares in a company which already held a goods vehicle [NAME]. She made a declaration of interest in terms of [COMPANY] and an application was forwarded to the Central Licensing Unit in Leeds; she thought that was the right way to go about things and, [NAME] submitted, it showed a level of transparency and willingness to engage with the Office of the [NAME]. (See page 327.)

66. What the [NAME] said about this submission was as follows:-

The Leeds caseworkers dealt with [NAME] on a face value basis initially. As the variation application became known within the wider knowledge of my Office, the application was immediately earmarked for a Public Inquiry and consideration of repute and material change. I can find no evidence that [NAME] pro-actively alerted Leeds to the named potential

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take over of [NAME] nor to any pro-active disclosure of her relationship with disqualified persons. She could not avoid contact with Leeds and may have hoped that in a large organisation she had the chance of slipping under the radar if sufficiently friendly. It can happen. I make these observations for the central plank of [NAME]’s submission was the transparency of [NAME]. The moment her involvement with the [NAME] was identified by the team in Edinburgh, who knew of the “[NAME]” background, she could only be visible. I also wonder just what “transparent” means – does it mean “truthful”? Does it mean “trustworthy”? I am not sure how far asserting “transparency” takes either her or me in this case.

67. An examination of the brief for the public inquiry does not reveal any evidence that [NAME] specifically advised the Leeds Office that she was potentially going to take over a business called “[NAME]” nor did she say in her evidence to the public inquiry that she had so advised the Leeds office. As the [NAME] correctly points out, as soon as the variation application involving [NAME] became known to the team in Edinburgh she became highly visible. It is not strictly correct to say that the [NAME] made a finding in fact that [NAME] had not been transparent in her application about her links with [NAME]. However, [NAME] made less than full disclosure in the variation application (pages 26-32). Under financial history she answered yes to the question, “has anyone you’ve named in this application (including partners, directors and transport managers) ever been involved with a company or business that has gone (or is going into) liquidation, owing money?” She gave some further information under “Additional Information” (see paragraph 30 above).

68. However, [NAME] did not disclose that she was company secretary of [NAME] from 1 December 2007 until its dissolution; that she had been office administrator for [NAME]; that she had been a director of [COMPANY]; that she had been a director of [COMPANY]; that she had been a director of [COMPANY]; and that she had been administrator of and loaned money to [COMPANY].

69. While we do not agree that the [NAME]’s observations in paragraph 70 of her decision amount to a finding that [NAME] was not transparent with the CLO, she did not make full disclosure. What the [NAME] did find was that she wanted to avoid making a new application for a [NAME]. Based on the evidence and the findings in fact, we consider that that was an entirely reasonable inference to draw. She considered her assertion that she was going it alone and gave reasons based on her interpretation of the evidence why she could not accept that. This is discussed in more detail below.

70. On behalf of the appellants, complaint was made about “the finding that applications/[NAME] herself were being used as cynical devices by [NAME] to get around the loss of the [COMPANY] [NAME]/[NAME]’s disqualification”.

71. [NAME] acknowledged that the factual context of the case was such that any [NAME] was bound to wonder and consider whether [NAME]’s application was a front for [NAME] to get around his regulatory difficulties. However, he submitted that [NAME] presented an innocent explanation for her application: this was a venture she was pursing on her own without [NAME]’s involvement. That evidence, he stated, was supported by a third party namely [NAME]. Added to that was the fact that [NAME] had proved herself to be competent and capable to organise transport operations in the recent

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past. [NAME] submitted that the [NAME] had leapt to a conclusion without considering [NAME]’s “innocent explanation” and without embarking upon any process of reasoning at all.

72. What the [NAME] had to do was to consider and weigh all the evidence available to her which was relevant to the issues which she had to decide. There was a considerable amount of historic factual information and more recent evidence available to the [NAME]; it is simply not possible or necessary for her to record every aspect of the evidence that she considered and what she made of it.

73. [COMPANY]’s interim [NAME] was suspended on 22 June 2016. [NAME] gave evidence that about that time she discussed purchasing [COMPANY] from the [NAME]. The final day of the public inquiry into [COMPANY]’s application was on 30 January 2017 and the decision refusing [COMPANY] a [NAME] and disqualifying [NAME] and [NAME] was issued on 3 May 2017. [NAME] gave evidence that in March or April 2017, she had further discussions with [NAME] and with another company, [NAME]. She gave evidence that [NAME] and she had been discussing [NAME]’s buying a transport company and [NAME] told her that he had been talking to [NAME] and he would possibly sell his company. The timing of the loss of the [NAME] and disqualification of [NAME] and [NAME] with the purchase of a company with a [NAME] is suggestive that the one causing the other and it would have been remiss of the [NAME] not to weight this in the balance.

74. The [NAME] considered [NAME]’s company operating costings to be crude, something which [NAME] accepted. [NAME] proposed to use the same yard for her operating centre as had previously been used by [NAME], [COMPANY] and [NAME]. However, she was uncertain as to her capacity as signatory on the lease for the proposed operating centre. Who the real tenant was was never established at the public inquiry; a surprising area of confusion for an [NAME] about her proposed operating centre. Given the knowledge [NAME] had of the ease with which a new company could be incorporated, the fact that she had paid £8,000, which she borrowed at 26% APR (see pages 331-333), for an existing company with a [NAME] but no assets, does beg the question why she did that. [NAME] said that she thought it would speed up the process. There was also the immediate transfer of [ID] from [COMPANY] to [COMPANY] on in May 2017. [NAME] gave evidence that her contacts were the same as [NAME]’s contacts and she would use them to secure business. The [NAME] had to decide if this was conduct designed to enable [NAME] and [NAME] to continue to operate together despite his disqualification. She had to consider whether, against the whole background, [NAME]’s explanation was or was not convincing.

75. [NAME] was the director of [COMPANY] from 22 May 2015 to 31 March 2016. Her stated occupation was bookkeeper. She was involved in the operation of that company. [NAME] was the other director and also transport manager. [NAME] was a company which the [NAME] had found had operated vehicles registered to it without displaying a disc (see paragraphs 21 and 22 above). [NAME] was the administrator of [COMPANY] a company which the [NAME] found had operated vehicles not specified on a [NAME] (see paragraph 23 above). [NAME] was a director and administrator of [COMPANY]. The [NAME] found that this company allowed

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[NAME] to operate under cover of its [NAME]; this occurred at a time when [NAME] was a director of [COMPANY] (paragraph 33, page 177). [NAME] was a director of [COMPANY]. That company applied for a standard national [NAME] but the application was refused at a public inquiry held on 8 August 2011 following allegations that the company had been operating vehicles without authorisation and connections to [NAME]. [NAME] had been company secretary of [NAME] and administrator of both [NAME] and [NAME]. The unusual invoicing arrangement for which [NAME] was responsible between these two companies was commented upon by the Upper Tribunal (see paragraph 7 above). It would have been artificial for the [NAME] not to have regard to [NAME]’s involvement with these various entities and their significant non-compliance with the regulatory system.

76. There was some mention made of [NAME] suffering ill health. However, there was very little evidence about this other than some evidence from him at a previous public inquiry that he had trouble with his legs and his hands (page 215, paragraph 19). There was no evidence of mental decline. Until recently, he had been operating, albeit unlawfully, and driving which suggested he was neither physically nor mentally incapable.

77. The above is only a brief summary of all of the evidence which was before the [NAME]. It can be seen from the [NAME]’s decision that she did not rush to a conclusion that [NAME] was simply a front for [NAME]. She asked herself whether [NAME] really believed what she was saying that she could be free of [NAME]’s influence. She also asked herself whether [NAME]’s history with other companies and persons engaged in [NAME] licensing could be distinguished from her as an individual? (See page 349, paragraph 71.) Looking at the background, the [NAME] made reference to the earlier decisions which she found indicated that [NAME] had been involved in unlawful operating and that she was not in any way at the margins of what was going on (see page 349, paragraph 6. She considered that [NAME] would want to be involved in the business of a [NAME] if a [NAME] were granted and [NAME] would not resist him; she had not been able to stand up to him in the past and that they were a team. [NAME]’s long history in transport and the picture that emerges of him having a strong personality, a long history of non- compliance and evidence from [NAME] that she had not been able to prevent [NAME] in the past from operating unlawfully there was evidence entitling the [NAME] to form that view.

78. Regarding the evidence of [NAME] that he had been informed by [NAME] that [NAME] would have no role in [COMPANY] the [NAME] found this to be unimpressive and he failed to persuade her that he would truly know what was going on Mondays to Fridays as he would not be present. This was not an unreasonable inference to draw. Indeed, [NAME] agreed he would not know (page 313).

79. We consider that the [NAME] has looked at the evidence in the round and given reasons, based on the evidence which was before her, as to why she was unable to accept as genuine [NAME]’s assertions that she was setting up on her own and she would control and direct [NAME] on her own with no involvement from [NAME]. That was an assessment only she could make having had an opportunity to see and hear the witnesses. In examining the evidence, in our judgment, she has complied with the recommendations in Easy Go [NAME].

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80. In summary, given the timing of the purchase of another transport company; [NAME]’s involvement in that; the purchase of a company with an existing [NAME] rather than setting up a new company and that company making an application for a [NAME]; [NAME]’s history of central involvement with entities which had not complied with the regulatory regime and her close personal and business association with [NAME], the [NAME] had good grounds for inferring from all of that that [NAME] was the instrument who would obtain a [NAME] to enable her business with [NAME] to continue. It cannot be said that, in this respect, the [NAME] was “plainly wrong”.

81. The appellants complained about the finding that [NAME] “could not be trusted and/or lacked repute as a consequence of her involvement in [NAME]’s previous businesses/non-compliance”.

82. It was submitted that the [NAME] should have tried to identify what [NAME]’s role had been in the various businesses and to weigh in the balance positive matters including positive comments about her in the past. [NAME] had never been a [NAME] or transport manager and in the most recent business, [COMPANY], was not a director. The breaches committed, she said in her evidence, had been against her wishes. It was submitted that the [NAME] had failed to carry out that exercise.

83. As mentioned above, the [NAME] specifically asked herself whether [NAME], as an individual, could be distinguished from the companies and other persons she’d worked with. She considered [NAME]’s history of non-compliance and [NAME]’s close relationship with him on a personal/domestic level and in business. This has already been summarised in this decision. It is clear that the [NAME] had read and had regard to all of the previous public inquiries and decisions. However she was entitled to form her own view and make her own assessment of [NAME]. She had formed the view from the evidence that [NAME] and [NAME] were a team, that [NAME] was aware of unlawful activity, did not stop it or detach herself from it and, indeed, assisted in the administration of it by the invoicing and ingathering of funds. These were conclusions which, on the evidence, she was entitled to reach and which were not unreasonable.

84. The [NAME] had to decide whether [NAME] and [NAME] had the requisite good repute. As narrated above the [NAME] considered the question of repute along with the question of trust and whether she should put [COMPANY] out of business. She referred to and followed the guidance in the cases of [NAME] (No.

2) T2002/217, [NAME] 2009/225 and [COMPANY]. Given her findings in fact and the legitimate inferences she drew from these, it was inevitable that she would find that [NAME] was not of good repute and thus, neither was [NAME]. We can find no fault in her treatment of the evidence or the conclusions that she reached. We cannot find that she was “plainly wrong” on any of these matters which she had to decide. She was therefore bound to revoke [NAME]’s [NAME] (section 27 and 13A(2) of the 1995 Act).

85. The [NAME] then had to consider the question of disqualification. The fact that, earlier, the [NAME] did not disqualify [NAME] does not prevent the [NAME] from taking a different view. It is unrealistic to separate out [NAME]’s actions as a director and as an administrator. The [NAME] is bound to have regard to any relevant matter (paragraph 1(1) of Schedule 3 to the 1995 Act) and was therefore

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entitled to consider [NAME]’s conduct in both capacities as that was relevant to the assessment of culpability, repute and trust.

86. Given the [NAME]’s findings that the [NAME] was to be used by [NAME] and [NAME], indefinite disqualification of [NAME] and [COMPANY] was appropriate and proportionate. The [NAME] correctly had in mind that over many years [NAME] had been involved in unlawful operation that struck at the essential trust between the [NAME] and the Office of the [NAME] and undermined the regulatory regime. In addition, it potentially compromised road safety and gave her and the entities with which she was associated an unfair commercial advantage. We consider that an indefinite disqualification was entirely appropriate for both [NAME] and the company which was intended to be the vehicle for the continued operation of business by her and [NAME].

Decision

87. We have had in mind the guidance of the Court of Appeal in Bradley Fold. We have considered whether the [NAME]’s approach to the witnesses and to the evidence, her process of reasoning and the application of the relevant law requires us to adopt a different view from her. For the reasons that we have given the answer to those questions is in the negative. We find no flaw in her analysis and nothing disproportionate in her conclusions.

Accordingly, the appeal is dismissed.

(Signed)

MARION CALDWELL QC

Judge of the Upper Tribunal

Date: 30 March 2018