Kevin King & Sons Transport KD Plant and Haulage Limited
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ovey |
| Neutral Citation | [2024] UKUT 47 (AAC) |
| Published date | 27 March 2024 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
KEVIN KING, trading as Kevin King & Sons Transport
KD PLANT AND HAULAGE LIMITED
[2024] UKUT 47 (AAC)
IN THE UPPER TRIBUNAL UA-2023-000290-T
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS
IN AN APPEAL FROM THE DECISION OF:
ANTHONY SECULER, DEPUTY TRAFFIC COMMISSIONER FOR THE
NORTH WEST OF ENGLAND TRAFFIC AREA
DATED 13th February 2023
Before:
Elizabeth Ovey, Judge of the Upper Tribunal
Richard Fry, Specialist Member of the Upper Tribunal
Sarah Booth, Specialist Member of the Upper Tribunal
Appellants: KEVIN KING, trading as Kevin King & Sons Transport
KD PLANT AND HAULAGE LIMITED
Attendance: Mr. Darren B. Finnegan appeared for the Appellants.
Heard at: The Rolls Building, 7 Rolls Building, Fetter Lane, London EC4A 1NL
Date of hearing: 28th September 2023
Date of decision: 8th February 2024
DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that the appeal be DISMISSED.
SUBJECT MATTER: Breach of drivers’ hours and tachograph regulations;
misleading application for standard licence; false evidence; whether findings
of fact can stand; whether disproportionate
CASES REFERRED TO: Associated Provincial Picture Houses Limited v.
Wednesbury Corporation [1948] 1 K.B. 223; Dukes Transport (Craigavon)
Limited, Appeal 68/2001; Bryan Haulage Limited (No. 2) 217/2002; Priority
Freight Limited and Williams 2009/225; Bradley Fold Travel Limited and Peter
UA-2023-000290-T
KEVIN KING, trading as Kevin King & Sons Transport
KD PLANT AND HAULAGE LIMITED
[2024] UKUT 47 (AAC)
2
Wright v. Secretary of State for Transport [2010] EWCA Civ 695, [2011] R.T.R.
13; Gilders Transport Limited T/2017/45; John Stuart Strachan t/a Strachan
Haulage T/2019/25
REASONS FOR DECISION
Introduction
1. This is an appeal by Mr. Kevin King, trading as Kevin King & Sons
Transport, and by KD Plant Hire and Haulage Limited (“the Company”) against
the decisions of the Deputy Traffic Commissioner for the North West of
England (“the TC”) given on 13th February 2023 that:
1.1. The operator’s licence in the name of Kevin King & Sons
Transport (for convenience “Mr. King’s licence”) was revoked
from 23.59 on 13th March 2023.
1.2. The Company’s operator’s licence was revoked from 23.59 on
13th March 2023.
1.3. Mr. King lost his good repute as a transport manager.
1.4. Mr. King was disqualified from acting as a transport manager for
12 months.
1.5. Mr. King was disqualified from holding or applying for an
operator’s licence for 12 months beginning on 13th March 2023.
1.6. Ms. Debbie Wallace, a director of the Company, was disqualified
from holding or applying for an operator’s licence for 12 months
beginning on 13th March 2023.
2. On bringing their appeal, the appellants also sought a stay of the
decisions set out in paragraphs 1.2 to 1.6 above. The stay was granted by
the TC on 14th March 2023.
The facts
(a) Mr. King’s licence
3. Mr. King’s licence (OC1122141) was a standard operator’s licence with
a start date of 30th August 2013. The continuation application by Mr. King
dated 26th June 2018 contained the standard terms as to keeping the rules on
drivers’ hours and tachographs and associated records, keeping vehicles in a
fit and serviceable condition and driver defect reporting. At the material times
Mr. King was the nominated transport manager on the licence. He applied to
UA-2023-000290-T
KEVIN KING, trading as Kevin King & Sons Transport
KD PLANT AND HAULAGE LIMITED
[2024] UKUT 47 (AAC)
3
surrender the licence on 20th June 2021, two days after the Company’s
operator’s licence was granted, but the application was not accepted.
4. Mr. King was called to a public inquiry to be held on 31st January 2023
by a letter dated 22nd December 2022 which identified areas of concern which
we summarise as:
4.1. The issue of prohibition and fixed penalty notices in the last five
years.
4.2. Breach of the undertakings as to the condition of vehicles,
drivers’ hours and tachographs and driver defect reporting.
4.3. Whether Mr. King as transport manager was professionally
competent and of good repute.
5. The detailed evidence leading to the TC’s concerns was contained
primarily in a traffic examiner visit report dated 6th December 2022 from
Johannah Groom and a maintenance investigation report following a visit on
4th May 2021 from Colin Brown, both of the Driver and Vehicle Standards
Agency (“the DVSA”). Reliance was also placed on a DVSA interview with a
driver, Jason Day.
6. Ms. Groom explained that on 4th May 2021 she began to conduct a
compliance check for drivers’ hours and systems. Her report recorded one
prohibition dated 16th March 2018 in respect of a tachograph which was not
fitted properly and no prosecutions or fixed penalties. On the day of the visit
(4th May 2021) she downloaded some data and requested the production of
further information, some of which, but not all, was received on 16th May 2021.
When she downloaded that data she identified a number of occasions
between 27th July 2020 and 26th January 2021 which appeared to constitute
infringement of the drivers’ hours and tachograph rules. In particular it
appeared that Mr. Day had been using Mr. King’s driver’s card.
7. On 14th June 2021 Ms. Groom wrote to Mr. King requesting further
information. Appointments were made for meetings with Mr. King on 2nd July
(a date which Mr. King had said he was able to make), 7th July and 19th
October 2021, all of which he failed to attend. He finally attended on 12th
November 2021 and was interviewed under caution. Following the interview
Ms. Groom concluded that Mr. King had been in hospital when his card was
used and was not aware of the use made of it, but the systems in place did
not highlight that that was happening. In consequence of that and his failures
to attend meetings and produce documents she considered that he was not
complying with the statement of intent in relation to the undertakings on the
licence.
8. The transcript of the interview contains the following:
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