R (Al-Le Logistics Ltd) v Traffic Commissioner for South Eastern & Metropolitan Traffic Area
| Jurisdiction | England & Wales |
| Judge | David Holgate QC |
| Judgment Date | 02 February 2010 |
| Neutral Citation | [2010] EWHC 134 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7007/2009 |
| Date | 02 February 2010 |
[2010] EWHC 134 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: David Holgate QC
(Sitting as a Deputy Judge of the High Court
Case No: CO/7007/2009
The Queen On the Application Of
Walter Aylen QC and John Upton (instructed by Robert Locke Solicitors) for the Claimants
Sam Grodzinski (instructed by the Treasury Solicitor) for the First and Third Defendants
Gordon Nardell (instructed by the Treasury Solicitor) Second Defendant
Hearing date: 16 th December 2009
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
David Holgate QC:
Introduction
The Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”) implements the European Community obligations of the UK in relation to the licensing of operators of heavy goods vehicles. Such an operator must hold a licence issued by a Traffic Commissioner who is an independent regulator. A Commissioner has the power subsequently to revoke a licence on specified grounds and may also disqualify the operator or connected persons from holding a licence. This licensing regime serves a vital public interest, namely to protect public safety. The present case arose as a result of a fatal accident which involved a driver employed by the First Claimant, Al-Le Logistics Limited (“ALLL”).
The Claimants have applied for permission to seek judicial review of a decision by the First Defendant, the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area (“TC SEMTA”). On 7 th April 2009 he decided to call all four Claimants to a second public inquiry. That decision was communicated by letters dated 11 May (see para 34 of TC SEMTA's witness statement). I heard the application at a rolled-up hearing.
The original inquiry had taken place on 3 rd and 4 th April 2008, after criminal proceedings against a number of ALLL's drivers had been concluded. (However, none of the Claimants have been prosecuted). The inquiry was held by the First Defendant, who is the Senior Traffic Commissioner. He gave his decision on 29 th May 2008. He revoked the First Claimant's operator's licence having concluded that the company had “lost its repute” (see section 27 of the 1995 Act) and had also failed to have proper compliance arrangements in place (see section 26 of the 1995 Act). The First Defendant also made a disqualification order for 12 months under section 28 of the 1995 Act against the Second Claimant, Mr. Alan Bennett, a director of ALLL. He also made a finding of loss of repute against the Fourth Claimant, Mr. Michael Godden who at that stage was the Transport Manager of ALLL. The First, Second and Fourth Claimants then appealed to the Transport Tribunal. On 3 rd November 2008 the Tribunal, presided over by His Honour Judge Brodrick allowed the appeal and remitted the matter for “consideration of a rehearing”.
On 11 th May 2009 the First Defendant himself took the decision that the proceedings should continue and that a fresh public inquiry should be held. However, he also directed that the inquiry be held by a Deputy Traffic Commissioner with no previous involvement in this matter. The present claim was issued on 29 th June 2009, initially to challenge that decision to continue with the proceedings and the inquiry. The various grounds alleged against the First Defendant include breach of legitimate expectation, incorrect burden of proof, lack of disclosure, and denial of natural justice. The Third Claimant, Mrs Lee Bennett, is the wife of Mr. Alan Bennett and also a director of the First Claimant. However, none of the decisions of the Traffic Commissioners criticised in the hearing before me were made against her personally.
The Second Defendant, the Vehicle and Operator Services Agency (“VOSA”) is an executive agency of the Department for Transport. Its officials include examiners, who monitor operators' compliance with the 1995 Act, conduct investigations, and provide evidence to enable a Traffic Commissioner to decide whether to exercise his or her powers. Other officials serve as management and administrative staff, including some who work in the Office of the Traffic Commissioner (see below). The claim also made a number of broad allegations against VOSA, including abuse of process, involvement in systemic bias and a denial of natural justice.
The Third Defendant is the Traffic Commissioner for the North Western Traffic Area (“TC NWTA”). She dealt with another company, Al-Le Logistics Northern Limited (“Northern”), based in Southport. Following a submission from VOSA, on 11th May 2009 TC NWTA issued a call-up letter requiring Northern to attend a public inquiry on 8th June 2009 which was to consider allegations that the operator was in breach of its licence. Mr. Walter Aylen QC on behalf of the Claimants accepted that there are links between ALLL and Northern. Indeed, it is apparent that certain individuals have been involved in both of those companies.
The public inquiry into Northern took place on 8th June 2009, but the company did not appear and was not represented. However, a consultant, Mr. Marsh, attended in order to keep a watching brief on behalf of ALLL. The Third Defendant issued a decision on the day of the inquiry. She decided to revoke the operator's licence. That decision is not the subject of any challenge before this Court. The Commissioner also considered the position of the nominated transport managers for the operator Northern. One of those managers was said to be Mr. Christopher Bennett. In paragraph 4 of her decision letter the Commissioner said that at that stage she was unable to make any findings in relation to Mr. Bennett because he had been unable to attend the public inquiry, but she would give him one further opportunity to attend before her to make further representations or to give evidence. Having heard nothing further from Mr Bennett, on 27th July 2009 the Third Defendant issued a second decision in which she decided that he had lost his “good repute”. The letter also pointed out that while the 1995 Act did not give Mr. Bennett an express right of appeal against her decision, he could nonetheless pursue an appeal to the Transport Tribunal.
To say the least, the papers which the Claimants put before the Court are in a muddle. Indeed, basic information about the case, such as the Claim Form, had to be gleaned from the Defendants' bundle. More importantly, paragraph 13 of the Claimants' Statement of Grounds alleged that the First Defendant's decision to call a second public inquiry involved bias, but no particulars were given. That public inquiry had been listed for hearing on 14 th July 2009. On 7 th July the Claimants made an urgent application for a stay of the inquiry. The matter was considered on the papers by Lord Carlisle of Berriew QC sitting as a Deputy Judge of the High Court. On 8 th July 2009 he granted a stay of the inquiry until the determination of the claim for judicial review, but he adjourned consideration of the permission application. The Deputy Judge also directed that if the Claimants were alleging “the appearance of bias” they should clarify that matter by serving an Addendum with reference to authorities by 29 th July 2009.
On 21 st July 2009 the Claimants' Solicitor then turned to TC NWTA informing her that it was intended to join her as a Defendant in the judicial review claim as a “participant in the actual bias which permeates these proceedings”. On 27 th July 2009 particulars of bias were served pursuant to the Deputy Judge's Order. The pleading was signed by Leading and Junior Counsel. Many of the particulars served were directed towards an alleged conspiracy between the two Traffic Commissioners and also the Second Defendant against the interests of the Claimants.
On 29 th July 2009 an application notice was served seeking to add TC NWTA as Third Defendant and further interim relief, namely, a stay of the Third Defendant's decision dated 27 th July 2009 revoking the good repute of Mr. Christopher Bennett pending the determination of the existing claim for judicial review. It is to be noted, however, that Mr. Christopher Bennett has at no stage sought to appeal to the Transport Tribunal against the decision of the Third Defendant dated 27 th July 2009. Indeed, he has not applied to be a party to the present claim for judicial review and that claim does not even seek to challenge the Third Defendant's decision.
The matter was considered on 3 rd August 2009 by Mr. Justice Foskett. He ordered that the TC NWTA be added as a Third Defendant and made directions as to the time for service of acknowledgments of service by the Defendants. He also gave directions for the listing of the application for interim relief. That application was to be heard on 13 th August 2009. On 12 th August 2009 the Treasury Solicitor, acting on behalf of the First and Third Defendants, made an urgent application that the question of the grant of any stay should not be dealt with until after the Court had considered whether to grant permission to apply for judicial review. It was argued that the question of whether a stay should be granted involved the same issue...
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