Coach Hire Surrey Ltd Paul Jones v Traffic Commissioner for the London and South East Traffic Area
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lady Justice Asplin,Lord Justice Popplewell |
| Judgment Date | 17 December 2020 |
| Neutral Citation | [2020] EWCA Civ 1706 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 2020 |
| Docket Number | Case No: C3/2019/2666 |
[2020] EWCA Civ 1706
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge Elizabeth Ovey, Mr S James and Mr P Rawsthorn
T/2019/16
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice Asplin
and
Lord Justice Popplewell
Case No: C3/2019/2666
and
David Pojur (instructed by Stone King LLP) for the Appellants
Adam Heppinstall (instructed by the Government Legal Department) for the Intervener
The Respondent did not appear and was not represented
Hearing date: 20 October 2020
Approved Judgment
Introduction
This is the appeal of Coach Hire Surrey Limited (“CHS”) and Mr Paul Jones (together “the Appellants”) from the decision of 13 August 2019 of the Upper Tribunal (Administrative Chamber) (Upper Tribunal Judge Elizabeth Ovey and Specialist Members Mr Stuart James and Mr David Rawsthorn) (the “UT”). By their decision the UT dismissed an appeal by the Appellants from a decision of 23 January 2019 of the Traffic Commissioner for the London and South East Traffic Area (Ms Sarah Bell) (the “TC”). The TC's decision had three elements:
“1. Pursuant to section 17(3)(e) of the Public Passenger and Vehicles Act 1981, [CHS] no longer meets the mandatory requirements under section 14ZA of that Act, namely good repute, financial standing and professional competence and revoked its licence with effect from 23:45hrs on 28 February 2019.
2. CHS and Mr Paul Jones are disqualified from holding or obtaining an Operators' Licence or being involved in an entity that holds such a licence as provided for by section 28 of the Transport Act 1985 for a period of 10 years from 23:45hrs on 28 February 2019.
3. The operator failed to satisfy [the TC] that Mr Paul Jones meets the requirement for good repute as per Section 14ZA(3)(a).”
By a decision of 3 October 2019, the UT declined to review their decision (in exercise of the power conferred by r.45(1) of the Tribunal Procedure (Upper Tribunal Rules 2008)), and they refused permission to appeal to this court from their earlier substantive decision of 13 August 2019. On 23 October 2019 the Appellants filed an Appellant's Notice in this court seeking permission to appeal and seeking an order setting aside the UT's order as a whole. By order of 3 March 2020 of Lewison LJ the Appellants were granted permission to appeal, limited to the period of disqualification only.
In his skeleton argument for the appeal, Mr Pojur for the Appellants argued that the period of disqualification was manifestly excessive and challenged certain parts of the reasoning underlying the orders that were made. By order of 25 September 2020 (Dingemans LJ) the Secretary of State for Transport was given permission to intervene in the appeal. Mr Heppinstall lodged written submissions on his behalf and supplemented those submissions at the hearing before us. I am grateful to both counsel for their contributions.
Background Facts
The case has a long history and some of the events covered by the TC's decision go back as far as 2013. I can, however, take the basic facts of the case from the UT's decision, none of which are now contested on the appeal.
The immediate trigger for the present proceedings occurred in late August 2018 when Mr Jones became a director of CHS. Mr David Harriss resigned his directorship of CHS on 28 August 2018 and Mr Jones took his place on the following day. On that day an application was lodged for Mr Jones to become the transport manager of CHS. In the application, which was signed by him, he gave the name of “Adam Smith”, and enclosed a copy of a deed poll evidencing the change of name from Adam Smith to Paul Jones. It seems that a “certificate of professional competence” had been granted to Mr Jones in the name “Adam Smith” on 12 July 2012. The UT, perhaps surprisingly, considered that the use of the name Adam Smith in the application was “understandable”. The application disclosed no convictions in respect of the applicant, in either name. That omission made the application glaringly incomplete.
There was also an application made to vary the operator's licence to remove the name of Mr Harriss and to replace it with Mr Jones. That disclosed Mr Jones' involvement with a company called Western Greyhound Limited which had gone into administration while he was engaged in the company's business. It was said that Mr Jones had stayed on to help the administrators in the sale of assets and that he had thereafter been made redundant. That application also stated that Mr Jones had not been convicted of any relevant offence. Certain “licence undertakings” were also included, including promises that Mr Jones would notify the TC of any convictions against him and of any changes that might affect the licence.
This application was immediately met by a letter from the TC's Office (of 3 September 2018), requesting documentation and asking why Mr Jones had failed to disclose convictions which were in the office's records. Mr Jones responded on 11 September 2018 with this:
“With regard to my conviction for Possession of counterfeit currency, the part of the form that was due to be completed and was in fact completed in relation to this by the previous owner of [CHS] and not myself …”
He went on to say that he had been arrested and charged with three offences, that he pleaded guilty to one offence out of the three and was sentenced to a custodial sentence of 12 months, suspended for 18 months, with 120 hours community service and a fine of £600. Mr Jones said that he realised that the TC would “take my conviction in a very dim light”; he said he had had no convictions since 2014. He wrote that in the light of this and “other negative involvements” with the TC's Office, he wished to ask for a public enquiry.
It emerged in the course of the subsequent public enquiry, and confirmed by a certificate of conviction, that in the Crown Court at Kingston upon Thames on 15 August 2014 Mr Jones had been convicted, on his pleas of guilty, to offences involving possession of counterfeit currency to the face value of £9,600 for which he had been sentenced to a total of 16 months imprisonment suspended for 24 months, with a requirement of 150 hours unpaid work. It seems that the Crown did not proceed on a further charge of intention to spend the notes still in his possession. That sentence was, of course, more severe than that which he had disclosed when confronted by the letter from the TC's Office of 3 September 2018.
The TC's officials asked for financial information with regard to CHS, including 3 months' trading statements. Bank statements for the period April to October 2018 were provided. The UT recorded in their decision that the statements disclosed insufficient funds. In para. 11 of the decision the UT outlined the “other involvements” to which Mr Jones must have been referring in his letter of 11 September 2018. They said in their decision that the documents showed that Mr Jones had been involved with a number of other companies providing public transport as follows:
“(1) from about 27th March 2013 to 12th March 2014 Mr. Jones was the director and controlling shareholder of BETC (“BETC”). He then transferred his shares to Mr. Richard Hill and resigned as a director but continued to be employed as general manager. A public inquiry was held by the present TC in relation to BETC on 9th May 2017, but the matters with which that inquiry dealt did not relate to Mr. Jones, although in the evidence it was alleged that he had left the company's affairs in a mess. It is stated in the case summary at p.5 of our bundle that the name Adam Smith appears on 5th June 2018 in relation to a variation application. When the case summary was prepared BETC's licence had been revoked, subject to an appeal;
(2) Mr. Jones (under the name Adam Smith), as one of two directors, applied on 8th April 2014 for an operator's licence for Surrey Etc. Limited (“Surrey Etc.”) and was the nominated transport manager. The other director was Mr. Nigel Thomas. The application was subsequently withdrawn. It is alleged in a letter dated 7th October 2014 from a firm of solicitors called Oliver Legal to the then traffic commissioner for the South Eastern and Metropolitan Traffic Area that Surrey Etc. was incorporated in an attempt to steal work from BETC. Other allegations are also made in relation to Mr. Jones, but we have seen nothing to support any of them. We note, however, that BETC appears to have traded under the name Buses Etc. and that another company called Croydon Coaches Limited appears to have traded under the name Coaches Etc. Mr. Jones appears to have had some form of connection with the latter company;
(3) from 1st August to 2nd September 2014 Mr. Jones was a director of Black Velvet Travel Limited (“Black Velvet”), in relation to which a public inquiry was held on 10th September 2015, jointly with an inquiry in respect of Western Greyhound, by the present TC in the capacity of Traffic Commissioner for the Western Traffic Area. Our bundle includes a newspaper cutting which states that Mr. Jones' sentence for possessing counterfeit currency was suspended because the Black Velvet employees depended upon him for their employment;
(4) the decision made by the TC following that inquiry shows that there was evidence that Mr. Jones had...
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