Crompton v Department of Transport
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE WALLER,Lord Justice Kennedy,Lord Justice Mance,Lord Justice Mantell |
| Judgment Date | 31 January 2003 |
| Neutral Citation | [2003] EWCA Civ 64,[2002] EWCA Civ 1444 |
| Date | 31 January 2003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2002/1248,C/2002/1248 |
[2002] EWCA Civ 1444
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF THE TRANSPORT TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Waller
C/2002/1248
MISS W OUTHWAITE (instructed by J Charles Hughes & Co, Dolgellau LL40 1AY) appeared on behalf of the Applicant
The Respondent did not appear and was not represented.
This is an application for permission to appeal from a decision on appeal in the Court of the Transport Tribunal. Without deciding the point, we assume this is a second appeal and in reaching our decision we take into account recent authority of this court that on such applications essentially the same test should be applied as that applied to applications for second appeals.
The applicant, Mr D Crompton, seeks to reverse a decision of the Court of the Transport Tribunal given on 13 May 2002, following an oral hearing on 25 April 2002. The Tribunal dismissed the applicant's appeal against the revocation of an operator's licence ordered by the Traffic Commissioner for the North Western Traffic Area, by order made on 26 November 2001. The ground of the revocation of the operator's licence was that the applicant was no longer of good repute under section 27 of the Goods Vehicles Licensing of Operators Act 1995. I do not propose to set out the provisions. They appear in the skeleton argument of Miss Outhwaite of counsel, who has appeared for the applicant.
The tribunal gave a reasoned decision. It was based on the behaviour of the applicant following the close of an earlier public inquiry held on 27 June 2001. An incident occurred and the tribunal set out at paragraph 2(iii) of their statement of reasons the evidence given by Mr Jewell. Threats were made, following a hearing at which a decision adverse to the applicant had been made. The applicant and his brother were involved and a threat was made to a witness at the hearing which had just completed, the traffic examiner Karen Farr. Moreover, the applicant's brother said, in circumstances in which the applicant may be taken to be associated with the remarks, that "he knew the registration number of the Deputy Traffic Commissioner's car, quoting the actual number, calling him an obscene name and saying 'He will have to sleep with one eye open from now on'."
It is right to say that by telephone and by letter following the incident, which occurred immediately after and in the building of the public inquiry, the applicant did apologise to the witness for his behaviour.
The tribunal did, in making its decision, draw attention to comments made by the Traffic Commissioner, in her oral decision, about a fresh application being made. We do not know the result but we are told a fresh application has been made for a licence. There was a considerable lapse of time between the giving of the decision and the making of the application, which had been contemplated in the decision itself. We are told that the application was made subsequent to the refusal of permission on paper and has not yet been determined.
I have to say that I am singularly unimpressed with Miss Outhwaite's attempt to trivialise the behaviour of the applicant. In her skeleton argument she refers to it as "ungentlemanly conduct", she refers to it as "merely trivial" (although that expression was retracted in the course of oral submissions this morning), and she persisted in describing the conduct, within the precincts of the building at which the public inquiry had been held and immediately following that inquiry, as "social behaviour". It was in my judgment serious conduct which went to the proper administration of justice, both with respect to the conduct towards a witness and conduct with respect to the Deputy Traffic Commissioner.
I was also unimpressed with Miss Outhwaite's advice, which she has told the court she has given the applicant, that there is nothing more he can do, having written to Mrs Farr, to remedy or apologise for his behaviour. This was outrageous conduct which, in my judgment, was likely to have an adverse effect upon the administration of justice.
However, the issue is whether the conduct justified a finding of lack of good repute, as that term is used in section 27(1) and schedule 3 of the Act. I am persuaded that this is an issue which is of sufficient importance to justify a hearing before this court. The points made are, first, that having found that there is a lack of good repute, no discretion is left, on the statutory wording, to a commissioner or tribunal in relation to whether the licence should be revoked. It follows, submits Mrs Outhwaite, that a high test is contemplated when considering whether conduct does involve the loss of good repute. The concept of proportionality should be applied and it should be considered whether the conduct complained of and found to have occurred requires the drastic result of a revocation of the operator's licence. Second, it is submitted, a question arises as to the relevance of the behaviour at the tribunal to the concept of good repute contemplated in the statute. However serious that conduct was, it is submitted, there is no sufficient link between it and the ability to operate within the meaning of the Act. Third, the revocation of a licence is not rightly regarded as a punishment. What the commissioner and the tribunal have to do is to consider whether the applicant is of good repute for the purposes of the regulations, and the revocation of a licence should not be treated merely as a punishment for behaviour of the kind which occurred in this case.
I would propose to grant permission for the reasons I have given. The applicant should not be confident about his success, but issues have been raised which, in my view, justify the attention of this court in the public interest.
Attention needs to be given before the hearing to the bundles of documents prepared for the use of the court. The bundle which we have is missing documents to which counsel has referred in her arguments, and it appears that she does not have a copy of the bundle which the court has. Clearly the preparation of the bundle needs further attention. It needs to be paginated and properly indexed. The skeleton argument was within the bundle but was not referred to in the index of the bundle prepared for the court and was not paginated as part of the bundle. This should be remedied before the hearing.
I would grant permission.
I agree.
ORDER: Application allowed, the appeal to be heard before three Lords Justices with a time estimate of half a day.
(order does not form part of the approved judgment)
[2003] EWCA Civ 64
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Transport Tribunal Road Haulage Appeal
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Kennedy
Lord Justice Mantell and
Lord Justice Mance
Case No: C1/2002/1248
Wendy Outhwaite (instructed by J. Charles Hughes & Co. Bridge End, Gynedd LL40 1AY) for the appellant
This is an operator's appeal from a decision of the Transport Tribunal Road Haulage Appeals, sitting in London, which on 13 th May 2002 dismissed the operator's appeal from a decision of the Traffic Commissioner for the North Western Traffic Area who, on 26 th November 2001, had revoked the operator's operating licence on the basis that he was no longer of good repute for the purposes of section 27 of the Goods Vehicles (Licensing of Operators) Act 1995.
Statutory Provisions
Section 27(1) of the 1995 Act provides –
"The traffic commissioners by whom a standard licence was issued shall direct that it be revoked if at any time it appears to him that the licence-holder is no longer –
(a) of good repute,
(b) of the appropriate financial standing, or
(c) professionally competent;
and the traffic commissioner shall determine whether or not that is the case in accordance with schedule 3."
Schedule 3 deals with qualifications for standard licence, and paragraph 1 of that schedule deals with good repute. So far as material that paragraph provides –
"(1) In determining whether an individual is of good repute, a traffic commissioner 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 licence.
(2) In determining whether a company is of good repute, a traffic commissioner shall have regard to all the material evidence including, in particular –
(a) any relevant convictions of the company or 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 licence."
Sub-paragraph (3), read together with later provisions, identifies convictions which are relevant, and paragraph 2 reads –
"Without prejudice to the generality...
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