Bradley Fold Travel Ltd and Another v The Traffic Commissioner for The North West Traffic Area
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson,Lady Justice Smith,Lord Justice Sedley |
| Judgment Date | 18 June 2010 |
| Neutral Citation | [2010] EWCA Civ 695 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2009/1872 |
| Date | 18 June 2010 |
[2010] EWCA Civ 695
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TRANSPORT TRIBUNAL
(His Honour Michael Brodrick)
Before: Lord Justice Sedley
Lady Justice Smith
and
Lord Justice Leveson
Case No: C3/2009/1872
PSV/2009/829
Mr Peter Wright appeared in person and on behalf of Bradley Fold Travel Ltd.
Gordon Nardell Q.C. (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : 9 June 2010
Lord Justice Leveson : 1. This is an appeal, brought as of right, from a decision of the Transport Tribunal (chaired by His Honour Michael Brodrick) by which Bradley Fold Travel Ltd (“the Operator”) and its Director and Transport Manager, Mr Peter Wright (“Mr Wright”) seek to challenge the rejection of their appeal from a decision of the Deputy Traffic Commissioner for the North Western Area (“the Deputy Commissioner”) revoking the Operator's public service vehicle operator's licence and disqualifying Mr Wright from holding an operator's licence for 18 months. A stay of the order was refused both on paper by Arden LJ and, following an oral hearing, by Laws LJ.
Although appeals in cases such as this have, from 1 September 2009, been transferred to the Upper Tribunal (with a further appeal to this court requiring permission), the Amended Grounds of Appeal (which, at an earlier hearing, Ward, Wall and Wilson LJJ gave permission to argue) raise issues of principle which will also impact on the scope of an appeal to the Upper Tribunal and thus bear analysis. At the same hearing, the Secretary of State for Transport was given permission to intervene and has taken the place of the Traffic Commissioner as the Respondent to the appeal.
The Facts
There is a substantial background to the present case which it is necessary to rehearse in order to provide the full context within which the issues of law have to be decided. In February and March 2007, the Operator (engaged in transporting school children and general travel) was subject to a Public Inquiry before a Traffic Commissioner in connection with its conduct of the Standard National Public Service Vehicle Operator's licence which it held for seven vehicles. For reasons which do not need to be rehearsed, its licence was revoked.
An appeal was mounted against the decision to the Transport Tribunal which, largely as a consequence of the way in which the Public Inquiry was handled, was successful so that, in August 2007, the matter was remitted for rehearing before a different Traffic Commissioner. That is not to say that the Transport Tribunal did not have serious concerns about the Operator and Mr Wright. The President (Hugh Carlisle Q.C.) made it clear that there was “detail of many failings in maintenance, particularly in relation to the recent increase in prohibition notices and to the details in carrying our some preventative maintenance inspections”, described “on any view” as serious. Further, it is important to note that these concerns were accepted by counsel for the Operator. Because of the serious maintenance findings, giving rise to misgivings, the Transport Tribunal ‘curtailed’ the number of vehicles authorised from seven to five until the rehearing. The Transport Tribunal also indicated that the Vehicle & Operator Services Agency (“VOSA”) should be asked to carry out an unannounced inspection prior to the hearing, adding that the Operator “will, no doubt, carry out a thorough review of its maintenance arrangements and the role of its transport manager”.
The rehearing came before the Deputy Commissioner on 28 March 2008. In the light of the substantial challenge made by Mr Wright (including a challenge to the completeness of the transcript), it is necessary to rehearse how the matter proceeded. The transcript reveals that the Deputy Commissioner had read the decision of the Transport Tribunal but was conscious that he had to consider the position as at March 2008 (including the unannounced inspection). He said:
“All issues remain open for the re-hearing, but certainly, and I thought this would be helpful indication to you … is that there's so much water under the bridge that if the Transport Tribunal awarded a fresh unannounced inspection … and vehicles to be put through the MOT, then it's really what's happened since the Transport Tribunal decision that I'm going to, if you agree, focus on, rather than going back into the [mists] of time”
Roger Allanson (then acting for the Operator and Mr Wright) did not demur. He observed:
“If [decisions as to acts of vandalism] because of the issues it had on culpability … is now consigned to the annals of time because the water's passed under the bridge as it were … and we need to look at the current position from August 2007 and the unannounced visit and how Mr Wright's vehicles performed in the September 2007 MOTs, that limits clearly the scope of the enquiry today…”
The Deputy Commissioner did not consider his public duty required him to go back to 2006 and, after an adjournment, he proceeded to hear evidence of events following the Transport Tribunal. In the event, taking into account the passage of time and the position at that date, he did not revoke the Operator's licence but, by varying the relevant condition, confirmed the reduction of the number of vehicles authorised (“as a result of the breach of undertaking to maintain vehicles in a fit and serviceable condition”). He concluded that the repute of the Operator had been “tarnished rather than lost” (this being a reference to the statutory requirements of the licence to which I shall return). He also accepted a number of undertakings which were offered by the Operator and Mr Wright. These were recorded in a letter to the Operator dated 3 April 2008 in these terms:
“(a) Safety inspections will be pre-planned and never more than 6 weeks apart. The PMI reports will be retained for at least 2 years.
(b) Except for advisory items, all defects found at safety inspections will be rectified by an outside professional maintenance contractor and all vehicles will not be used on the roads until such rectification has taken place and the contractor has signed the certificate of roadworthiness. Records to be kept for 2 years.
(c) Operator will continue to use a nil driver daily reporting system.
(d) All authorised vehicles will have a thorough and effective pre MOT inspection.
(e) The operator will install and use a roller brake test machine (albeit a portable one if appropriate) within 6 months.”
Mr Wright was content with the reduced number of licensed vehicles (on the basis that the financial position of the Operator did not enable him to operate more than the reduced number); the business thus continued. The next development was the maintenance inspection directed by the Deputy Commissioner which took place on 14 and 24 November 2008: three vehicles were examined and maintenance documents checked. It was made clear that safety inspections were carried out every 6 weeks by a Mr Wolstenholme of Wolstenholme Transport Services Ltd who, presumably in response to a request from the VOSA examiner, wrote an undated letter to him in these terms:
“I carry out all the safety inspections for [the Operator] and prefer not to undertake any major repairs. Other than occasional replacement of fuses, light bulbs or tightening of bolts etc where required, I have never discovered any faults that would render the vehicle unroadworthy. If I did so, [the Operator] would be advised accordingly.”
The examiner looked at the PMI sheets which revealed that virtually all defects found at safety inspections had been designated ‘A’ (advisory) and that Mr Wright had done the rectification himself. The sheets had been completed by Mr Wright although he later explained that he did so because Mr Wolstenholme's writing was poor and that the designation of defects as Advisory was that of Mr Wolstenholme. Further, notwithstanding the undertaking, some defects marked ‘D’ (delayed) had been rectified by Mr Wright.
There were a number of other concerns. In relation to C782 MVH, on 9 October 2008, a PG9D was issued in relation to a tyre below the legal limit: three days earlier it had been adjudged by Mr Wright or Mr Wolstenholme as “on limit”. To have that prohibition cleared, the vehicle was taken to an MOT station where clearance could be treated as a full MOT; Mr Wright so elected but had no documentary evidence of a pre-MOT inspection although he said that he had done a walk-round check. In fact the MOT test had to be abandoned when the vehicle clutch pipe fractured although a number of faults (including an air leak from a relay valve with the foot brake applied and the exhaust front holed and blowing) were identified.
Further, there was no roller brake test machine and the examiner was not shown any documentation to confirm its acquisition although Mr Wright explained that he had acquired a second hand machine in September 2008 and that it was being refurbished.
The tachographs of the three vehicles then being used were also examined. Over the six months between 20 May 2008 and 13 November 2008, a number of problems were identified. Thus, Mr Wright (who did much of the driving) was not recording his regular journeys from home to the operating centre (and back again) in one of the vehicles; in relation to all three some tachograph charts were missing. Further on at least three occasions, as a consequence of his previous driving pattern, Mr Wright was obliged to take a...
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